EX-10.4




Exhibit
10.4


REVOLVING CREDIT AGREEMENT


dated as of June 30, 2008


among


THE E.W. SCRIPPS COMPANY,

as Borrower,


THE LENDERS FROM TIME TO TIME PARTY HERETO,


SUNTRUST BANK,

as Administrative Agent


and


U.S. BANK NATIONAL ASSOCIATION,

as Documentation Agent


 



SUNTRUST ROBINSON HUMPHREY, INC.,

as Joint Lead Arranger and Sole Book Manager


and


FIFTH THIRD BANK,

as Joint Lead Arranger and Syndication Agent



 









 




TABLE OF CONTENTS



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	ARTICLE I DEFINITIONS; CONSTRUCTION	 	 	1	 
	 
	 	Section 1.1.	 	Definitions	 	 	1	 
	 
	 	Section 1.2.	 	Classifications of Loans and Borrowings	 	 	18	 
	 
	 	Section 1.3.	 	Accounting Terms and Determination	 	 	18	 
	 
	 	Section 1.4.	 	Terms Generally	 	 	18	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II AMOUNT AND TERMS OF THE REVOLVING COMMITMENTS	 	 	19	 
	 
	 	Section 2.1.	 	General Description of Facilities	 	 	19	 
	 
	 	Section 2.2.	 	Revolving Loans	 	 	19	 
	 
	 	Section 2.3.	 	Procedure for Revolving Borrowings	 	 	19	 
	 
	 	Section 2.4.	 	Swingline Commitment	 	 	20	 
	 
	 	Section 2.5.	 	Funding of Borrowings	 	 	21	 
	 
	 	Section 2.6.	 	Interest Elections	 	 	22	 
	 
	 	Section 2.7.	 	Optional Reduction and Termination of Revolving Commitments	 	 	23	 
	 
	 	Section 2.8.	 	Repayment of Loans	 	 	23	 
	 
	 	Section 2.9.	 	Evidence of Indebtedness	 	 	24	 
	 
	 	Section 2.10.	 	Optional Prepayments	 	 	24	 
	 
	 	Section 2.11.	 	Interest on Loans	 	 	25	 
	 
	 	Section 2.12.	 	Fees	 	 	25	 
	 
	 	Section 2.13.	 	Computation of Interest and Fees	 	 	26	 
	 
	 	Section 2.14.	 	Inability to Determine Interest Rates	 	 	26	 
	 
	 	Section 2.15.	 	Illegality	 	 	27	 
	 
	 	Section 2.16.	 	Increased Costs	 	 	27	 
	 
	 	Section 2.17.	 	Funding Indemnity	 	 	28	 
	 
	 	Section 2.18.	 	Taxes	 	 	29	 
	 
	 	Section 2.19.	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	 	 	30	 
	 
	 	Section 2.20.	 	Letters of Credit	 	 	32	 
	 
	 	Section 2.21.	 	Increase of Revolving Commitments; Additional Lenders	 	 	36	 
	 
	 	Section 2.22.	 	Mitigation of Obligations	 	 	37	 
	 
	 	Section 2.23.	 	Replacement of Lenders	 	 	38	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT	 	 	38	 
	 
	 	Section 3.1.	 	Conditions To Effectiveness	 	 	38	 
	 
	 	Section 3.2.	 	Each Credit Event	 	 	40	 
	 
	 	Section 3.3.	 	Delivery of Documents	 	 	41	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES	 	 	41	 
	 
	 	Section 4.1.	 	Existence; Power	 	 	41	 
	 
	 	Section 4.2.	 	Organizational Power; Authorization	 	 	41	 
	 
	 	Section 4.3.	 	Governmental Approvals; No Conflicts	 	 	42	 
	 
	 	Section 4.4.	 	Financial Statements	 	 	42	 
	 
	 	Section 4.5.	 	Litigation and Environmental Matters	 	 	42	 






 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	Section 4.6.	 	Compliance with Laws and Agreements	 	 	43	 
	 
	 	Section 4.7.	 	Investment Company Act, Etc.	 	 	43	 
	 
	 	Section 4.8.	 	Taxes	 	 	43	 
	 
	 	Section 4.9.	 	Margin Regulations	 	 	43	 
	 
	 	Section 4.10.	 	ERISA	 	 	43	 
	 
	 	Section 4.11.	 	Ownership of Property	 	 	44	 
	 
	 	Section 4.12.	 	Disclosure	 	 	44	 
	 
	 	Section 4.13.	 	Labor Relations	 	 	44	 
	 
	 	Section 4.14.	 	Subsidiaries	 	 	45	 
	 
	 	Section 4.15.	 	Insolvency	 	 	45	 
	 
	 	Section 4.16.	 	OFAC	 	 	45	 
	 
	 	Section 4.17.	 	Patriot Act	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V AFFIRMATIVE COVENANTS	 	 	45	 
	 
	 	Section 5.1.	 	Financial Statements and Other Information	 	 	45	 
	 
	 	Section 5.2.	 	Notices of Material Events	 	 	47	 
	 
	 	Section 5.3.	 	Existence; Conduct of Business	 	 	48	 
	 
	 	Section 5.4.	 	Compliance with Laws, Etc.	 	 	48	 
	 
	 	Section 5.5.	 	Payment of Obligations	 	 	48	 
	 
	 	Section 5.6.	 	Books and Records	 	 	48	 
	 
	 	Section 5.7.	 	Visitation, Inspection, Etc.	 	 	48	 
	 
	 	Section 5.8.	 	Maintenance of Properties; Insurance	 	 	49	 
	 
	 	Section 5.9.	 	Use of Proceeds and Letters of Credit	 	 	49	 
	 
	 	Section 5.10.	 	Further Assurances	 	 	49	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI FINANCIAL COVENANTS	 	 	49	 
	 
	 	Section 6.1.	 	Leverage Ratio	 	 	49	 
	 
	 	Section 6.2.	 	Interest Coverage Ratio	 	 	50	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII NEGATIVE COVENANTS	 	 	50	 
	 
	 	Section 7.1.	 	Indebtedness and Preferred Equity	 	 	50	 
	 
	 	Section 7.2.	 	Negative Pledge	 	 	51	 
	 
	 	Section 7.3.	 	Fundamental Changes	 	 	52	 
	 
	 	Section 7.4.	 	Investments, Loans, Etc.	 	 	52	 
	 
	 	Section 7.5.	 	Restricted Payments	 	 	53	 
	 
	 	Section 7.6.	 	Sale of Assets	 	 	53	 
	 
	 	Section 7.7.	 	Transactions with Affiliates	 	 	54	 
	 
	 	Section 7.8.	 	Restrictive Agreements	 	 	54	 
	 
	 	Section 7.9.	 	Sale and Leaseback Transactions	 	 	54	 
	 
	 	Section 7.10.	 	Hedging Transactions	 	 	55	 
	 
	 	Section 7.11.	 	Permitted Subordinated Indebtedness	 	 	55	 
	 
	 	Section 7.12.	 	Accounting Changes	 	 	55	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII            EVENTS OF DEFAULT	 	 	56	 
	 
	 	Section 8.1.	 	Events of Default	 	 	56	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IX THE ADMINISTRATIVE AGENT	 	 	58	 






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	 	 	 	 	 	 	Page	 
	 
	 	Section 9.1.	 	Appointment of Administrative Agent	 	 	58	 
	 
	 	Section 9.2.	 	Nature of Duties of Administrative Agent	 	 	59	 
	 
	 	Section 9.3.	 	Lack of Reliance on the Administrative Agent	 	 	60	 
	 
	 	Section 9.4.	 	Certain Rights of the Administrative Agent	 	 	60	 
	 
	 	Section 9.5.	 	Reliance by Administrative Agent	 	 	60	 
	 
	 	Section 9.6.	 	The Administrative Agent in its Individual Capacity	 	 	60	 
	 
	 	Section 9.7.	 	Successor Administrative Agent	 	 	60	 
	 
	 	Section 9.8.	 	Authorization to Execute other Loan Documents	 	 	61	 
	 
	 	Section 9.9.	 	Syndication Agen/Documentation Agent	 	 	61	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE X MISCELLANEOUS	 	 	61	 
	 
	 	Section 10.1.	 	Notices	 	 	61	 
	 
	 	Section 10.2.	 	Waiver; Amendments	 	 	63	 
	 
	 	Section 10.3.	 	Expenses; Indemnification	 	 	64	 
	 
	 	Section 10.4.	 	Successors and Assigns	 	 	66	 
	 
	 	Section 10.5.	 	Governing Law; Jurisdiction; Consent to Service of Process	 	 	69	 
	 
	 	Section 10.6.	 	Waiver Of Jury Trial	 	 	70	 
	 
	 	Section 10.7.	 	Right of Setoff	 	 	70	 
	 
	 	Section 10.8.	 	Counterparts; Integration	 	 	70	 
	 
	 	Section 10.9.	 	Survival	 	 	71	 
	 
	 	Section 10.10.	 	Severability	 	 	71	 
	 
	 	Section 10.11.	 	Confidentiality	 	 	71	 
	 
	 	Section 10.12.	 	Interest Rate Limitation	 	 	72	 
	 
	 	Section 10.13.	 	Waiver of Effect of Corporate Seal	 	 	72	 
	 
	 	Section 10.14.	 	Patriot Act	 	 	72	 






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	Schedules
	 	 	 	 
	Schedule I
	 	—	 	Applicable Margin and Applicable Percentage
	Schedule II
	 	—	 	Revolving Commitment Amounts
	Schedule 4.5
	 	—	 	Environmental Matters
	Schedule 4.10
	 	—	 	ERISA Matters
	Schedule 4.11(b)
	 	—	 	Intellectual Property
	Schedule 4.11(c)
	 	—	 	Insurance
	Schedule 4.14
	 	—	 	Subsidiaries
	Schedule 7.1
	 	—	 	Outstanding Indebtedness
	Schedule 7.2
	 	—	 	Existing Liens
	Schedule 7.7
	 	—	 	Affiliate Transactions
	 
	 	 	 	 
	Exhibits
	 	 	 	 
	 
	 	 	 	 
	Exhibit A
	 	—	 	Form of Revolving Credit Note
	Exhibit B
	 	—	 	Form of Swingline Note
	Exhibit C
	 	—	 	Form of Assignment and Acceptance
	Exhibit 2.3
	 	—	 	Form of Notice of Revolving Borrowing
	Exhibit 2.4
	 	—	 	Form of Notice of Swingline Borrowing
	Exhibit 2.6
	 	—	 	Form of Notice of Continuation/Conversion
	Exhibit 3.1(b)(iv)
	 	—	 	Form of Secretary’s Certificate
	Exhibit 3.1(b)(vii)
	 	—	 	Form of Officer’s Certificate
	Exhibit 5.1(c)
	 	—	 	Form of Compliance Certificate






vi









 





REVOLVING CREDIT AGREEMENT




          THIS REVOLVING CREDIT AGREEMENT (this “Agreement”) is made and entered into as of June
30, 2008, by and among THE E.W. SCRIPPS COMPANY, an Ohio corporation (the “Borrower”), the
several banks and other financial institutions and lenders from time to time party hereto (the
“Lenders”), and SUNTRUST BANK, in its capacity as administrative agent for the Lenders (the
“Administrative Agent”), as issuing bank (the “Issuing Bank”) and as swingline
lender (the “Swingline Lender”).




W I T N E S S E T H:




          WHEREAS, the Borrower has requested that the Lenders establish a $200,000,000 revolving credit
facility in favor of the Borrower;




          WHEREAS, subject to the terms and conditions of this Agreement, the Lenders, the Issuing Bank
and the Swingline Lender to the extent of their respective Revolving Commitments as defined herein,
are willing severally to establish the requested revolving credit facility, letter of credit
subfacility and the swingline subfacility in favor of the Borrower.




          NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
the Borrower, the Lenders, the Administrative Agent, the Issuing Bank and the Swingline Lender
agree as follows:




ARTICLE I




DEFINITIONS; CONSTRUCTION




     Section 1.1. Definitions. In addition to the other terms defined herein, the
following terms used herein shall have the meanings herein specified (to be equally applicable to
both the singular and plural forms of the terms defined):



          “Additional Lender” shall have the meaning given to such term in Section
2.21(b).




          “Adjusted LIBO Rate” shall mean, with respect to each Interest Period for a Eurodollar
Borrowing, the rate per annum obtained by dividing (i) LIBOR for such Interest Period by (ii) a
percentage equal to 1.00 minus the Eurodollar Reserve Percentage.




          “Administrative Questionnaire” shall mean, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent and submitted to the
Administrative Agent duly completed by such Lender.




          “Affiliate” shall mean, when used with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is
under common Control with the Person specified.




 









 





          “Aggregate Revolving Commitment Amount” shall mean the aggregate principal amount of
the Aggregate Revolving Commitments from time to time. On the Closing Date, the Aggregate
Revolving Commitment Amount equals $200,000,000.




          “Aggregate Revolving Commitments” shall mean, collectively, all Revolving Commitments
of all Lenders at any time outstanding.




          “Applicable Lending Office” shall mean, for each Lender and for each Type of Loan, the
“Lending Office” of such Lender (or an Affiliate of such Lender) designated for such Type of Loan
in the Administrative Questionnaire submitted by such Lender or such other office of such Lender
(or an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office by which its Loans of such Type are to be made and maintained.




          “Applicable Margin” shall mean, as of any date, with respect to interest on all
Revolving Loans outstanding on any date or the letter of credit fee, as the case may be, a
percentage per annum determined by reference to the applicable Leverage Ratio from time to time in
effect as set forth on Schedule I; provided, that a change in the Applicable Margin
resulting from a change in the Leverage Ratio shall be effective on the second Business Day after
which the Borrower delivers the financial statements required by Section 5.1(a) or
(b) and the Compliance Certificate required by Section 5.1(c); provided
further, that if at any time the Borrower shall have failed to deliver such financial
statements and such Compliance Certificate when so required, the Applicable Margin shall be at
Level I as set forth on Schedule I until such time as such financial statements and
Compliance Certificate are delivered, at which time the Applicable Margin shall be determined as
provided above. Notwithstanding the foregoing, the Applicable Margin from the Closing Date until
the financial statements and Compliance Certificate for the Fiscal Quarter ending September
30, 2008 are required to be delivered shall be at Level VI as set forth on Schedule I.




          “Applicable Percentage” shall mean, as of any date, with respect to the commitment fee
as of any date, the percentage per annum determined by reference to the applicable Leverage Ratio
in effect on such date as set forth on Schedule I; provided, that a change in the
Applicable Percentage resulting from a change in the Leverage Ratio shall be effective on the
second Business Day after which the Borrower delivers the financial statements required by
Section 5.1(a) and (b) and the Compliance Certificate required by
Section 5.1(c); provided further, that if at any time the Borrower shall
have failed to deliver such financial statements and such Compliance Certificate, the Applicable
Percentage shall be at Level I as set forth on Schedule I until such time as such financial
statements and Compliance Certificate are delivered, at which time the Applicable Percentage shall
be determined as provided above. Notwithstanding the foregoing, the Applicable Percentage for the
commitment fee from the Closing Date until the financial statements and Compliance Certificate for
the Fiscal Quarter ending September 30, 2008 are required to be delivered shall be at Level VI as
set forth on Schedule I.




          “Approved Fund” shall mean any Person (other than a natural Person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business and that is administered or




2









 




managed by (i) a Lender, (ii) a Lender Affiliate of a Lender or (iii) an entity or a Lender
Affiliate of an entity that administers or manages a Lender.




          “Assignment and Acceptance” shall mean an assignment and acceptance entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section
10.4(b)) and accepted by the Administrative Agent, in the form of Exhibit C attached
hereto or any other form approved by the Administrative Agent.




          “Availability Period” shall mean the period from the Closing Date to but excluding the
Revolving Commitment Termination Date.




          “Base Rate” shall mean the higher of (i) the per annum rate which the Administrative
Agent publicly announces from time to time to be its prime lending rate, as in effect from time to
time, and (ii) the Federal Funds Rate, as in effect from time to time, plus one-half of one percent
(0.50%). The Administrative Agent’s prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The Administrative Agent may
make commercial loans or other loans at rates of interest at, above or below the Administrative
Agent’s prime lending rate. Each change in the Administrative Agent’s prime lending rate shall be
effective from and including the date such change is publicly announced as being effective.




          “Borrowing” shall mean a borrowing consisting of (i) Revolving Loans of the same Type,
made, converted or continued on the same date and in the case of Eurodollar Loans, as to which a
single Interest Period is in effect, or (ii) a Swingline Loan.




          “Business Day” shall mean (i) any day other than a Saturday, Sunday or other day on
which commercial banks in Atlanta, Georgia and New York, New York are authorized or required by law
to close and (ii) if such day relates to a Borrowing of, a payment or prepayment of principal or
interest on, a conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice with
respect to any of the foregoing, any day on which banks are open for dealings in dollar deposits
are carried on in the London interbank market.




          “Capital Lease Obligations” of any Person shall mean all obligations of such Person to
pay rent or other amounts under any lease (or other arrangement conveying the right to use) of real
or personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.




          “Change in Control” shall be deemed to have occurred if the Trust or the beneficiaries
thereof shall not be the direct or indirect owner, beneficially and of record, of at least 51% of
the issued and outstanding Common Voting Shares, $.01 par value per share, of the Borrower and any
other common stock at any time issued by the Borrower, other than the Borrower’s Class A Common
Shares, $.01 par value per share.




          “Change in Law” shall mean (i) the adoption of any applicable law, rule or regulation
after the date of this Agreement, (ii) any change in any applicable law, rule or regulation, or any
change in the interpretation or application thereof, by any Governmental




3









 




Authority after the date of this Agreement, or (iii) compliance by any Lender (or its
Applicable Lending Office) or the Issuing Bank (or for purposes of Section 2.16(b), by such
Lender’s or the Issuing Bank’s parent corporation, if applicable) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority made or issued
after the date of this Agreement.




          “Class,” when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.




          “Closing Date” shall mean the date on which the conditions precedent set forth in
Section 3.1 and Section 3.2 have been satisfied or waived in accordance with
Section 10.2.




          “Code” shall mean the Internal Revenue Code of 1986, as amended and in effect from
time to time.




          “Compliance Certificate” shall mean a certificate from the chief executive officer or
the chief financial officer or treasurer of the Borrower in the form of, and containing the
certifications set forth in, the certificate attached hereto as Exhibit 5.1(c).




          “Consolidated EBITDA” shall mean, for the Borrower and its Subsidiaries on a
consolidated basis for any period, an amount equal to the sum of (i) Consolidated Net Income for
such period plus (ii) to the extent deducted in determining Consolidated Net Income for such
period, (A) Consolidated Interest Expense, (B) income tax expense determined on a consolidated
basis in accordance with GAAP, (C) depreciation and amortization determined on a consolidated basis
in accordance with GAAP, (D) unusual and non-recurring non-cash charges recorded during such period
and (E) non-cash compensation expenses arising from the issuance of stock, options to purchase
stock and stock appreciation rights to the officers, directors and employees of the Borrower and
its Subsidiaries, determined on a consolidated basis in accordance with GAAP, in each case for such
period.




          “Consolidated Interest Expense” shall mean, for the Borrower and its Subsidiaries for
any period determined on a consolidated basis in accordance with GAAP, total interest expense,
including without limitation the interest component of any payments in respect of Capital Lease
Obligations capitalized or expensed during such period (whether or not actually paid during such
period).




          “Consolidated Net Income” shall mean, for the Borrower and its Subsidiaries for any
period, the net income (or loss) of the Borrower and its Subsidiaries for such period determined on
a consolidated basis in accordance with GAAP, but excluding therefrom (to the extent otherwise
included therein) (i) any extraordinary gains or losses, (ii) any gains attributable to write-ups
of assets, and (iii) any income (or loss) of any Person accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with the Borrower or any Subsidiary on the date that
such Person’s assets are acquired by the Borrower or any Subsidiary.




          “Consolidated Total Debt” shall mean, as of any date, all Indebtedness of the Borrower
and its Subsidiaries measured on a consolidated basis as of such date, but excluding Indebtedness
of the type described in subsection (xi) of the definition thereto.




4









 





          “Contractual Obligation” of any Person shall mean any provision of any security issued
by such Person or of any agreement, instrument or undertaking under which such Person is obligated
or by which it or any of the property in which it has an interest is bound.




          “Control” shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ownership of
voting securities, by contract or otherwise, and “Controlling” and “Controlled” shall have meanings
correlative thereto.




          “Default” shall mean any condition or event that, with the giving of notice or the
lapse of time or both, would constitute an Event of Default.




          “Default Interest” shall have the meaning set forth in Section 2.11(c).




          “Dollar(s)” and the sign “$” shall mean lawful money of the United States of America.




          “Environmental Laws” shall mean all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by or with any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, Release or threatened Release of
any Hazardous Material or to health and safety matters.




          “Environmental Liability” shall mean any liability, contingent or otherwise (including
any liability for damages, costs of environmental investigation and remediation, costs of
administrative oversight, fines, natural resource damages, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly resulting from or based upon (i) any actual or
alleged violation of any Environmental Law, (ii) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (iii) any actual or alleged exposure to
any Hazardous Materials, (iv) the Release or threatened Release of any Hazardous Materials or (v)
any contract, agreement or other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.




          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time, and any successor statute.




          “ERISA Affiliate” shall mean any trade or business (whether or not incorporated),
which, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of
the Code or, solely for the purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.




          “ERISA Event” shall mean (i) any “reportable event,” as defined in Section 4043 of
ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which
the 30-day notice period is waived); (ii) the existence with respect to any Plan of an “accumulated
funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (iii) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any Plan; (iv) the
incurrence by the Borrower or any of its ERISA Affiliates of any liability




5









 




under Title IV of ERISA with respect to the termination of any Plan; (v) the receipt by the
Borrower or any ERISA Affiliate from the PBGC or a plan administrator appointed by the PBGC of any
notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (vi) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan;
or (vii) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected
to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.




          “Eurodollar” when used in reference to any Revolving Loan or Borrowing of a Revolving
Loan, refers to whether such Loan, or the Loans comprising such Borrowing, bears interest at a rate
determined by reference to the Adjusted LIBO Rate.




          “Eurodollar Reserve Percentage” shall mean the aggregate of the maximum reserve
percentages (including, without limitation, any emergency, supplemental, special or other marginal
reserves) expressed as a decimal (rounded upwards to the next 1/100th of 1%) in effect
on any day to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate
pursuant to regulations issued by the Board of Governors of the Federal Reserve System (or any
Governmental Authority succeeding to any of its principal functions) with respect to eurocurrency
funding (currently referred to as “eurocurrency liabilities” under Regulation D). Eurodollar Loans
shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be available from time
to time to any Lender under Regulation D. The Eurodollar Reserve Percentage shall be adjusted
automatically on and as of the effective date of any change in any reserve percentage.




          “Event of Default” shall have the meaning provided in Article VIII.




          “Excluded Taxes” shall mean with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by
the United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
Applicable Lending Office is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which any Lender is located and (c)
in the case of a Foreign Lender, any withholding tax that (i) is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement, (ii) is imposed
on amounts payable to such Foreign Lender at any time that such Foreign Lender designates a new
lending office, other than taxes that have accrued prior to the designation of such lending office
that are otherwise not Excluded Taxes, and (iii) is attributable to such Foreign Lender’s failure
to comply with Section 2.18(e).




          “Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if
necessary, to the next 1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with member banks of the Federal Reserve System arranged by
Federal funds brokers, as published by the Federal Reserve Bank of New York on the next




6









 




succeeding Business Day or if such rate is not so published for any Business Day, the Federal
Funds Rate for such day shall be the average rounded upwards, if necessary, to the next 1/100th of
1% of the quotations for such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the Administrative Agent.




          “Fee Letters” shall mean, collectively, those certain fee letters, each dated as of
April 17, 2008, executed by: (i) SunTrust Robinson Humphrey, Inc., SunTrust Bank and Fifth Third
Bank, an Ohio Banking Corporation and accepted by the Borrower; and (ii) SunTrust Robinson
Humphrey, Inc. and SunTrust Bank and accepted by the Borrower, related to the Administrative
Agent’s fees.




          “Fiscal Quarter” shall mean any fiscal quarter of the Borrower.




          “Fiscal Year” shall mean any fiscal year of the Borrower.




          “Foreign Lender” shall mean any Lender that is not a United States person under
Section 7701(a)(3) of the Code.




          “GAAP” shall mean generally accepted accounting principles in the United States
applied on a consistent basis and subject to the terms of Section 1.3.




          “Governmental Authority” shall mean the government of the United States of America,
any other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.




          “Guarantee” of or by any Person (the “guarantor”) shall mean any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly and including any obligation, direct or
indirect, of the guarantor (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for
the purchase of) any security for the payment thereof, (ii) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (iv) as an account party in respect of any
letter of credit or letter of guaranty issued in support of such Indebtedness or obligation;
provided, that the term “Guarantee” shall not include endorsements for collection or
deposits in the ordinary course of business. The amount of any Guarantee shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith. The term “Guarantee” used as a verb has a corresponding meaning.




          “Hazardous Materials” shall mean all explosive or radioactive substances or wastes and
all hazardous or toxic substances, wastes or other pollutants, including petroleum or




7









 




petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls,
radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.




          “Hedging Obligations” of any Person shall mean any and all obligations of such Person,
whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
under (i) any and all Hedging Transactions, (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Hedging Transactions and (iii) any and all renewals, extensions
and modifications of any Hedging Transactions and any and all substitutions for any Hedging
Transactions.




          “Hedging Transaction” of any Person shall mean (a) any transaction (including an
agreement with respect to any such transaction) now existing or hereafter entered into by such
Person that is a rate swap transaction, swap option, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option, spot transaction,
credit protection transaction, credit swap, credit default swap, credit default option, total
return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction,
buy/sell-back transaction, securities lending transaction, or any other similar transaction
(including any option with respect to any of these transactions) or any combination thereof,
whether or not any such transaction is governed by or subject to any master agreement and (b) any
and all transactions of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any
other master agreement (any such master agreement, together with any related schedules, a
“Master Agreement”), including any such obligations or liabilities under any Master
Agreement.




          “Indebtedness” of any Person shall mean, without duplication (i) all obligations of
such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all obligations of such Person in respect of the deferred
purchase price of property or services (other than trade payables and obligations regarding
programming rights incurred in the ordinary course of business; provided, that for purposes
of Section 8.1(g), trade payables and obligations regarding programming rights
overdue by more than 120 days shall be included in this definition except to the extent that any of
such trade payables and obligations regarding programming rights are being disputed in good faith
and by appropriate measures), (iv) all obligations of such Person under any conditional sale or
other title retention agreement(s) relating to property acquired by such Person, (v) all Capital
Lease Obligations of such Person, (vi) all obligations, contingent or otherwise, of such Person in
respect of letters of credit, acceptances or similar extensions of credit, (vii) all Guarantees of
such Person of the type of Indebtedness described in clauses (i) through (vi) above, (viii) all
Indebtedness of a third party secured by any Lien on property owned by such Person, whether or not
such Indebtedness has been assumed by such Person, (ix) all obligations of such Person, contingent
or otherwise, to purchase, redeem, retire or otherwise acquire for value any capital stock of such
Person, (x) Off-Balance Sheet Liabilities and (xi) all Hedging Obligations of such Person in an
amount which exceeds $15,000,000. The Indebtedness of any Person shall include




8









 




the Indebtedness of any partnership in which such Person is a general partner, except to the
extent that the terms of such Indebtedness provide that such Person is not liable therefor. For
purposes of this Agreement, the amount of any Indebtedness referred to in clause (xi) of the
preceding sentence shall be amounts, including any termination payments, required to be paid to a
counterparty after giving effect to any contractual netting arrangements, and not any notional
amount with regard to which payments may be calculated.




          “Interest Coverage Ratio” shall mean, as of any date, the ratio of (i) Consolidated
EBITDA for the four consecutive Fiscal Quarters ending on or immediately prior to such date to
(ii) Consolidated Interest Expense for such corresponding four-Fiscal Quarter period; provided,
however, that for any four-Fiscal Quarter period that includes one or more Fiscal Quarters
ended on or before June 30, 2008, “Interest Coverage Ratio” shall be determined on a pro forma
basis as if the Spin-off and the transactions contemplated thereby had occurred prior to the
beginning of the relevant four-Fiscal Quarter period.




          “Indemnified Taxes” shall mean Taxes other than Excluded Taxes.




          “Interest Period” shall mean with respect to (i) any Swingline Borrowing, such period
as the Swingline Lender and the Borrower shall mutually agree and (ii) any Eurodollar Borrowing, a
period of one, two, three or six months; provided, that:





     (i) the initial Interest Period for such Borrowing shall commence on the date of such
Borrowing (including the date of any conversion from a Borrowing of another Type), and each
Interest Period occurring thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period expires;




     (ii) if any Interest Period would otherwise end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day, unless such
Business Day falls in another calendar month, in which case such Interest Period would end
on the next preceding Business Day;




     (iii) any Interest Period which begins on the last Business Day of a calendar month or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period shall end on the last Business Day of such calendar month; and




     (iv) no Interest Period may extend beyond the Revolving Commitment Termination Date.



          “Investments” shall have the meaning as set forth in Section 7.4.




          “Issuing Bank” shall mean SunTrust Bank or any other Lender, each in its capacity as
an issuer of Letters of Credit pursuant to Section 2.20.




          “LC Commitment” shall mean that portion of the Aggregate Revolving Commitment Amount
that may be used by the Borrower for the issuance of Letters of Credit in an aggregate face amount
not to exceed $50,000,000.




9









 





          “LC Disbursement” shall mean a payment made by the Issuing Bank pursuant to a Letter
of Credit.




          “LC Documents” shall mean all applications, agreements and instruments relating to the
Letters of Credit (but excluding the Letters of Credit).




          “LC Exposure” shall mean, at any time, the sum of (i) the aggregate undrawn amount of
all outstanding Letters of Credit at such time, plus (ii) the aggregate amount of all LC
Disbursements that have not been reimbursed by or on behalf of the Borrower at such time. The LC
Exposure of any Lender shall be its Pro Rata Share of the total LC Exposure at such time.




          “Lender Affiliate” shall mean, as to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls, or is Controlled by, or is under common
Control with such Person. For the purposes of this definition, “Control” shall mean the power,
directly or indirectly, either to (i) vote 10% or more of the securities having ordinary voting
power for the election of directors (or persons performing similar functions) of a Person or (ii)
direct or cause the direction of the management and policies of a Person, whether through the
ability to exercise voting power, by control, by contract or otherwise. The terms “Controlling”,
“Controlled by”, and “under common Control with” shall have the meanings correlative thereto.




          “Lenders” shall have the meaning assigned to such term in the opening paragraph of
this Agreement and shall include, where appropriate, the Swingline Lender and each Additional
Lender that joins this Agreement pursuant to Section 2.21.




          “Letter of Credit” shall mean any stand-by letter of credit issued pursuant to Section
2.20 by the Issuing Bank for the account of the Borrower pursuant to the LC Commitment.




          “Leverage Ratio” shall mean, as of any date, the ratio of (i) Consolidated Total Debt
as of such date to (ii) Consolidated EBITDA for the four consecutive Fiscal Quarters ending on or
immediately prior to such date; provided, however, that for any four-Fiscal Quarter period
that includes one or more Fiscal Quarters ended on or before June 30, 2008, “Leverage Ratio” shall
be determined on a pro forma basis as if the Spin-off and the transactions contemplated thereby had
occurred prior to the beginning of the relevant four-Fiscal Quarter period.




          “LIBOR” shall mean, for any Interest Period with respect to a Eurodollar Loan, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBOR01 Page (or any successor page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London, England time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for any reason such rate
is not available, LIBOR shall be, for any Interest Period, the rate per annum reasonably determined
by the Administrative Agent as the rate of interest at which Dollar deposits in the approximate
amount of the Eurodollar Loan comprising part of such borrowing would be offered by the
Administrative Agent to major banks in the London interbank Eurodollar market at their request at
or about 10:00 a.m. two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period.




10









 





          “Lien” shall mean any mortgage, pledge, security interest, lien (statutory or
otherwise), charge, encumbrance, hypothecation, assignment, deposit arrangement, or other
arrangement having the practical effect of the foregoing or any preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having the same economic
effect as any of the foregoing).




          “Loan Documents” shall mean, collectively, this Agreement, the Notes (if any), the LC
Documents, all Notices of Borrowing, all Notices of Conversion/Continuation, all Compliance
Certificates and any and all other instruments, agreements, documents and writings executed by and
among the Borrower, the Administrative Agent or any Lender, the Swingline Lender or the Issuing
Bank in connection with any of the foregoing.




          “Loans” shall mean all Revolving Loans and Swingline Loans in the aggregate or any of
them, as the context shall require.




          “Material Adverse Effect” shall mean, with respect to any event, act, condition or
occurrence of whatever nature (including any adverse determination in any litigation, arbitration,
or governmental investigation or proceeding), whether singularly or in conjunction with any other
event or events, act or acts, condition or conditions, occurrence or occurrences whether or not
related, a material adverse change in, or a material adverse effect on, (i) the business, results
of operations, condition (financial or otherwise), assets, operations, liabilities (contingent or
otherwise) or properties of the Borrower and its Subsidiaries taken as a whole, (ii) the ability of
the Borrower to pay any of its obligations under the Loan Documents or perform any of its
obligations under the Loan Documents, (iii) the rights and remedies of the Administrative Agent,
the Issuing Bank, Swingline Lender, and the Lenders under any of the Loan Documents or (iv) the
legality, validity or enforceability of any of the Loan Documents.




          “Material Indebtedness” shall mean Indebtedness (other than the Loans and Letters of
Credit) of the Borrower or any of its Subsidiaries, individually or in an aggregate principal
amount exceeding $7,500,000.




          “Moody’s” shall mean Moody’s Investors Service, Inc.




          “Multiemployer Plan” shall have the meaning set forth in Section 4001(a)(3) of ERISA.




          “Notes” shall mean, collectively, the Revolving Credit Notes and the Swingline Note.




          “Notices of Borrowing” shall mean, collectively, the Notices of Revolving Borrowing,
and the Notices of Swingline Borrowing.




          “Notice of Conversion/Continuation” shall mean the notice given by the Borrower to the
Administrative Agent in respect of the conversion or continuation of an outstanding Borrowing as
provided in Section 2.6(b).




11









 





          “Notice of Revolving Borrowing” shall have the meaning as set forth in Section
2.3.




          “Notice of Swingline Borrowing” shall have the meaning as set forth in Section
2.4.




          “Obligations” shall mean (a) all amounts owing by the Borrower to the Administrative
Agent, the Issuing Bank or any Lender (including the Swingline Lender) pursuant to or in connection
with this Agreement or any other Loan Document or otherwise with respect to any Loan or Letter of
Credit, including without limitation, all principal, interest (including any interest accruing
after the filing of any petition in bankruptcy or the commencement of any insolvency,
reorganization or like proceeding relating to the Borrower, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding), all reimbursement obligations, fees,
expenses, indemnification and reimbursement payments, costs and expenses (including all reasonable
fees and expenses of counsel to the Administrative Agent, the Issuing Bank and any Lender
(including the Swingline Lender) incurred pursuant to this Agreement or any other Loan Document),
whether direct or indirect, absolute or contingent, liquidated or unliquidated, now existing or
hereafter arising hereunder or thereunder, and (b) all Treasury Management Obligations, together
with all renewals, extensions, modifications or refinancings of any of the foregoing.




          “Off-Balance Sheet Liabilities” of any Person shall mean (i) any repurchase obligation
or liability of such Person with respect to accounts or notes receivable sold by such Person, (ii)
any liability of such Person under any sale and leaseback transactions that do not create a
liability on the balance sheet of such Person, (iii) any Synthetic Lease Obligation or (iv) any
obligation arising with respect to any other transaction which is the functional equivalent of or
takes the place of borrowing but which does not constitute a liability on the balance sheet of such
Person.




          “OSHA” shall mean the Occupational Safety and Health Act of 1970, as amended from time
to time, and any successor statute.




          “Other Taxes” shall mean any and all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any payment made
hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Document.




          “Participant” shall have the meaning set forth in Section 10.4(d).




          “Payment Office” shall mean the office of the Administrative Agent located at 303
Peachtree Street, N.E., Atlanta, Georgia 30308, or such other location as to which the
Administrative Agent shall have given written notice to the Borrower and the other Lenders.




          “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in
ERISA, and any successor entity performing similar functions.




          “Permitted Encumbrances” shall mean:




12









 






     (i) Liens imposed by law for taxes not yet due or which are being contested in good
faith by appropriate proceedings diligently conducted and with respect to which adequate
reserves are being maintained in accordance with GAAP;




     (ii) statutory Liens of landlords, carriers, warehousemen, mechanics, materialmen and
other Liens imposed by law in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and with respect to which
adequate reserves are being maintained in accordance with GAAP;




     (iii) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations;




     (iv) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;




     (v) judgment and attachment liens not giving rise to an Event of Default or Liens
created by or existing from any litigation or legal proceeding that are currently being
contested in good faith by appropriate proceedings and with respect to which adequate
reserves are being maintained in accordance with GAAP;




     (vi) easements, zoning restrictions, rights-of-way and other encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected property
or materially interfere with the ordinary conduct of business of the Borrower and its
Subsidiaries taken as a whole; and




     (vii) Liens, if any, securing the Obligations;


provided, that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness (other than the Obligations).





     “Permitted Investments” shall mean:




     (i) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the United States), in each case
maturing within one year from the date of acquisition thereof;




     (ii) commercial paper having the highest rating, at the time of acquisition thereof, of
S&P or Moody’s and in either case maturing within six months from the date of acquisition
thereof;




     (iii) certificates of deposit, bankers’ acceptances and time deposits maturing within
180 days of the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of any



13









 







commercial bank organized under the laws of the United States or any state thereof which has
a combined capital and surplus and undivided profits of not less than $500,000,000;




     (iv) fully collateralized repurchase agreements with a term of not more than 30 days
for securities described in clause (i) above and entered into with a financial institution
satisfying the criteria described in clause (iii) above; and




     (v) mutual funds investing solely in any one or more of the Permitted Investments
described in clauses (i) through (iv) above.



          “Permitted Subordinated Debt” shall mean any Indebtedness of the Borrower or any
Subsidiary (i) that is expressly subordinated to the Obligations on terms satisfactory to the
Administrative Agent and the Required Lenders in their reasonable discretion, (ii) that matures by
its terms no earlier than six months after the Revolving Commitment Termination Date with no
scheduled principal payments permitted prior to such maturity, and (iii) that is evidenced by an
indenture or other similar agreement that is in a form satisfactory to the Administrative Agent and
the Required Lenders.




          “Person” shall mean any individual, partnership, firm, corporation, association, joint
venture, limited liability company, trust or other entity, or any Governmental Authority.




          “Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.




          “Pro Forma Basis” shall mean, in connection with any calculation of compliance with
any financial covenant in Article VI hereof, the calculation thereof after giving effect on a pro
forma basis to (x) the incurrence, assumption, acquisition or repayment of any Indebtedness after
the first day of the relevant period of four consecutive Fiscal Quarters (the “Relevant Period”)
(including any incurrence of Indebtedness to finance a transaction or payment giving rise for the
need to make such determination) as if such Indebtedness had been incurred, assumed, acquired or
repaid on the first day of such Relevant Period, (y) the making of any Restricted Payment or
Investment after the first day of the Relevant Period as if such Restricted Payment or Investment
had been made on the first day of such Relevant Period and (z) the sale or other disposition of
assets (including sales in connection with a Sale/Leaseback Transaction) after the first day of the
Relevant Period as if such asset sale had been made as of the first day of such Relevant Period.




          “Pro Rata Share” shall mean, with respect to any Lender at any time, a percentage, the
numerator of which shall be the sum of such Lender’s Revolving Commitment (or if such Revolving
Commitments have been terminated or expired or the Loans have been declared to be due and payable,
such Lender’s Revolving Credit Exposure) and the denominator of which shall be the sum of all
Lenders’ Revolving Commitments (or if such Revolving Commitments have been terminated or expired or
the Loans have been declared to be due and




14









 




payable, all Revolving Credit Exposure of all Lenders funded under such Revolving
Commitments).




          “Regulation D” shall mean Regulation D of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and any successor regulations.




          “Related Parties” shall mean, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.




          “Release” shall mean any release, spill, emission, leaking, dumping, injection,
pouring, deposit, disposal, discharge, dispersal, leaching or migration into the environment
(including ambient air, surface water, groundwater, land surface or subsurface strata) or within
any building, structure, facility or fixture.




          “Required Lenders” shall mean, at any time, Lenders holding more than 50% of the
aggregate outstanding Revolving Commitments at such time or if the Lenders have no Revolving
Commitments outstanding, then Lenders holding more than 50% of the Revolving Credit Exposure;
provided, that if at any time only two (2) Lenders exist hereunder, Required Lenders shall
mean both such Lenders.




          “Requirement of Law” for any Person shall mean the articles or certificate of
incorporation, bylaws, partnership certificate and agreement, or limited liability company
certificate of organization and agreement, as the case may be, and other organizational and
governing documents of such Person, and any law, treaty, rule or regulation, or determination of a
Governmental Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.




          “Responsible Officer” shall mean any of the president, the chief executive officer,
the chief operating officer, the chief financial officer, the treasurer or a vice president of the
Borrower or such other representative of the Borrower as may be designated in writing by any one of
the foregoing with the consent of the Administrative Agent; and, with respect to the financial
covenants only, the chief financial officer or the treasurer of the Borrower.




          “Restricted Payment” shall have the meaning set forth in Section 7.5.




          “Revolving Commitment” shall mean, with respect to each Lender, the commitment of such
Lender to make Revolving Loans to the Borrower and to acquire participations in Letters of Credit
and Swingline Loans in an aggregate principal amount not exceeding the amount set forth with
respect to such Lender on Schedule II, as such schedule may be amended pursuant to
Section 2.21, or in the case of a Person becoming a Lender after the Closing Date through
an assignment of an existing Revolving Commitment, the amount of the assigned “Revolving
Commitment” as provided in the Assignment and Acceptance executed by such Person as an assignee, as
the same may be increased or deceased pursuant to terms hereof.




          “Revolving Commitment Termination Date” shall mean the earliest of (i) June 30, 2013,
(ii) the date on which the Revolving Commitments are terminated pursuant to




15









 




Section 2.7 and (iii) the date on which all amounts outstanding under this Agreement
have been declared or have automatically become due and payable (whether by acceleration or
otherwise).




          “Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the
sum of the outstanding principal amount of such Lender’s Revolving Loans, LC Exposure and Swingline
Exposure.




          “Revolving Credit Note” shall mean a promissory note of the Borrower payable to the
order of a requesting Lender in the principal amount of such Lender’s Revolving Commitment, in
substantially the form of Exhibit A.




          “Revolving Loan” shall mean a loan made by a Lender (other than the Swingline Lender)
to the Borrower under its Revolving Commitment, which may either be a Base Rate Loan or a
Eurodollar Loan.




          “S&P” shall mean Standard & Poor’s, a Division of the McGraw-Hill Companies.




          “Sale/Leaseback Transaction” shall have the meaning set forth in Section 7.9.




          “Spin-off” shall mean the tax-free spin-off by the Borrower to its shareholders of the
common stock of Scripps Networks Interactive, Inc., as described by the Borrower in its public
filings prior to the date hereof.




          “Subordinated Debt Documents” shall mean any indenture, agreement or similar
instrument governing any Permitted Subordinated Debt.




          “Subsidiary” shall mean, with respect to any Person (the “parent”), any
corporation, partnership, joint venture, limited liability company, association or other entity the
accounts of which would be consolidated with those of the parent in the parent’s consolidated
financial statements if such financial statements were prepared in accordance with GAAP as of such
date, as well as any other corporation, partnership, joint venture, limited liability company,
association or other entity (i) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power, or in the case of a
partnership, more than 50% of the general partnership interests are, as of such date, owned,
controlled or held, or (ii) that is, as of such date, otherwise controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
Unless otherwise indicated, all references to “Subsidiary” hereunder shall mean a Subsidiary of the
Borrower. Unless the context clearly requires otherwise, all references in this Agreement to
Subsidiaries of the Borrower shall mean the Subsidiaries of the Borrower after giving effect to the
Spin-off and the transactions contemplated thereby.




          “Swingline Commitment” shall mean the commitment, if any, of the Swingline Lender to
make Swingline Loans. As of the Closing Date, the Swingline Commitment is equal to $0.




          “Swingline Exposure” shall mean, with respect to each Lender, the principal amount of
the Swingline Loans in which such Lender is legally obligated either to make a Base




16









 




Rate Loan or to purchase a participation in accordance with Section 2.4, which shall
equal such Lender’s Pro Rata Share of all outstanding Swingline Loans.




          “Swingline Lender” shall mean SunTrust Bank.




          “Swingline Loan” shall mean a loan made to the Borrower by the Swingline Lender under
the Swingline Commitment.




          “Swingline Note” shall mean the promissory note of the Borrower payable to the order
of the Swingline Lender in the principal amount of the Swingline Commitment, substantially the form
of Exhibit B.




          “Swingline Rate” shall mean, for any Interest Period, the rate as offered by the
Swingline Lender and accepted by the Borrower. The Borrower is under no obligation to accept this
rate, and the Swingline Lender is under no obligation to provide it.




          “Synthetic Lease” shall mean a lease transaction under which the parties intend that
(i) the lease will be treated as an “operating lease” by the lessee pursuant to Statement of
Financial Accounting Standards No. 13, as amended and (ii) the lessee will be entitled to various
tax and other benefits ordinarily available to owners (as opposed to lessees) of like property.




          “Synthetic Lease Obligations” shall mean, with respect to any Person, the sum of (i)
all remaining rental obligations of such Person as lessee under Synthetic Leases which are
attributable to principal and, without duplication, (ii) all rental and purchase price payment
obligations of such Person under such Synthetic Leases assuming such Person exercises the option to
purchase the lease property at the end of the lease term.




          “Taxes” shall mean any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.




          “Treasury Management Obligations” shall mean, collectively, all obligations and other
liabilities of the Borrower pursuant to any agreements governing the providing to the Borrower of
treasury or cash management services, including deposit accounts, funds transfer, purchasing card
services, automated clearing house, zero balance accounts, returned check concentration, controlled
disbursement, lockbox, account reconciliation and reporting and trade finance services.




          “Trust” shall mean The Edward W. Scripps Trust, being that certain trust for the
benefit of descendants of Edward W. Scripps and owning shares of capital stock of the Borrower.




          “Type,” when used in reference to a Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Base Rate.




          “Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.




17









 





          Section 1.2. Classifications of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g. a “Revolving Loan” or a “Swingline Loan”) or
by Type (e.g. a “Eurodollar Loan” or a “Base Rate Loan”) or by Class and Type (e.g. “Revolving
Eurodollar Loan”). Borrowings also may be classified and referred to by Class (e.g. “Revolving
Borrowing”) or by Type (e.g. “Eurodollar Borrowing”) or by Class and Type (e.g. “Revolving
Eurodollar Borrowing”).




          Section 1.3. Accounting Terms and Determination. Unless otherwise defined or
specified herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to be delivered
hereunder shall be prepared, in accordance with GAAP as in effect from time to time, applied on a
basis consistent with the most recent audited consolidated financial statement of the Borrower
delivered pursuant to Section 5.1(a); provided, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Article VI to
eliminate the effect of any change in GAAP on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article
VI for such purpose), then the Borrower’s compliance with such covenant shall be determined on
the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until
either such notice is withdrawn or such covenant is amended in a manner satisfactory to the
Borrower and the Required Lenders.




          Section 1.4. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. In the
computation of periods of time from a specified date to a later specified date, the word “from”
means “from and including” and the word “to” means “to but excluding”. Unless the context requires
otherwise (i) any definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document as it was
originally executed or as it may from time to time be amended, restated, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or modifications set forth
herein), (ii) any reference herein to any Person shall be construed to include such Person’s
successors and permitted assigns, (iii) the words “hereof”, “herein” and “hereunder” and words of
similar import shall be construed to refer to this Agreement as a whole and not to any particular
provision hereof, and (iv) all references to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles, Sections, Exhibits and Schedules to this Agreement. To the extent
that any of the representations and warranties contained in Article IV under this Agreement
is qualified by “Material Adverse Effect”, then the qualifier “in all material respects” contained
in Section 3.2 and the qualifier “in any material respect” contained in Section
8.1(c) shall not apply. Unless otherwise indicated, all references to time are references to
Eastern Standard Time or Eastern Daylight Savings Time, as the case may be. Unless otherwise
expressly provided herein, all references to dollar amounts shall mean Dollars. In determining
whether any individual event, act, condition or occurrence of the foregoing types could reasonably
be expected to result in a Material Adverse Effect, notwithstanding that a particular event, act,
condition or occurrence
does not itself have such effect, a Material Adverse Effect shall be deemed to have occurred
if the cumulative effect of




18









 




such event, act, condition or occurrence and all other such events,
acts, conditions or occurrences of the foregoing types which have occurred could reasonably be
expected to result in a Material Adverse Effect.




ARTICLE II




AMOUNT AND TERMS OF THE REVOLVING COMMITMENTS




          Section 2.1. General Description of Facilities. Subject to and upon the terms and
conditions herein set forth, (i) the Lenders hereby establish in favor of the Borrower a revolving
credit facility pursuant to which each Lender severally agrees (to the extent of such Lender’s
Revolving Commitment) to make Revolving Loans to the Borrower in accordance with Section
2.2, (ii) the Issuing Bank agrees to issue Letters of Credit in accordance with Section
2.20, (iii) the Swingline Lender agrees to make Swingline Loans in accordance with Section
2.4, and (iv) each Lender agrees to purchase a participation interest in the Letters of Credit
and the Swingline Loans pursuant to the terms and conditions hereof; provided, that in no
event shall the aggregate principal amount of all outstanding Revolving Loans, Swingline Loans and
outstanding LC Exposure exceed at any time the Aggregate Revolving Commitment Amount from time to
time in effect.




          Section 2.2. Revolving Loans. Subject to the terms and conditions set forth herein,
each Lender severally agrees to make Revolving Loans, ratably in proportion to its Pro Rata Share,
to the Borrower, from time to time during the Availability Period, in an aggregate principal amount
outstanding at any time that will not result in (a) such Lender’s Revolving Credit Exposure
exceeding such Lender’s Revolving Commitment or (b) the sum of the aggregate Revolving Credit
Exposures of all Lenders exceeding the Aggregate Revolving Commitment Amount. During the
Availability Period, the Borrower shall be entitled to borrow, prepay and reborrow Revolving Loans
in accordance with the terms and conditions of this Agreement; provided, that the Borrower
may not borrow or reborrow should there exist a Default or Event of Default at the time of the
proposed Borrowing.




          Section 2.3. Procedure for Revolving Borrowings. The Borrower shall give the
Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of each
Revolving Borrowing substantially in the form of Exhibit 2.3 (a “Notice of Revolving
Borrowing”) (x) prior to 11:00 a.m. on the requested date of each Base Rate Borrowing and (y)
prior to 11:00 a.m. three (3) Business Days prior to the requested date of each Eurodollar
Borrowing. Each Notice of Revolving Borrowing shall be irrevocable and shall specify: (i) the
aggregate principal amount of such Borrowing, (ii) the date of such Borrowing (which shall be a
Business Day), (iii) the Type of such Revolving Loan comprising such Borrowing and (iv) in the case
of a Eurodollar Borrowing, the duration of the initial Interest Period applicable thereto (subject
to the provisions of the definition of Interest Period). Each Revolving Borrowing shall
consist entirely of Base Rate Loans or Eurodollar Loans, as the Borrower may request. The
aggregate principal amount of each Eurodollar Borrowing shall be not less than $1,000,000 or a
larger multiple of $500,000, and the aggregate principal amount of each Base Rate Borrowing shall
not be less than $1,000,000 or a larger multiple of $500,000; provided, that Base Rate
Loans made pursuant to Section 2.4 or Section 2.20 (d) may be made in lesser
amounts as




19









 




provided therein. At no time shall the total number of Eurodollar Borrowings
outstanding at any time exceed six. Promptly following the receipt of a Notice of Revolving
Borrowing in accordance herewith, the Administrative Agent shall advise each Lender of the details
thereof and the amount of such Lender’s Revolving Loan to be made as part of the requested
Revolving Borrowing.




          Section 2.4. Swingline Commitment.




          (a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Borrower, from time to time during the Availability Period, in an aggregate
principal amount outstanding at any time not to exceed the lesser of (i) the Swingline Commitment
then in effect and (ii) the difference between the Aggregate Revolving Commitment Amount and
aggregate Revolving Credit Exposures of all Lenders; provided, that the Swingline Lender
shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. The
Borrower shall be entitled to borrow, repay and reborrow Swingline Loans in accordance with the
terms and conditions of this Agreement.




          (b) The Borrower shall give the Administrative Agent written notice (or telephonic notice
promptly confirmed in writing) of each Swingline Borrowing substantially in the form of Exhibit
2.4 attached hereto (“Notice of Swingline Borrowing”) prior to 10:00 a.m. on the
requested date of each Swingline Borrowing. Each Notice of Swingline Borrowing shall be
irrevocable and shall specify: (i) the principal amount of such Swingline Loan, (ii) the date of
such Swingline Loan (which shall be a Business Day) and (iii) the account of the Borrower to which
the proceeds of such Swingline Loan should be credited. The Administrative Agent will promptly
advise the Swingline Lender of each Notice of Swingline Borrowing. Each Swingline Loan shall
accrue interest at the Swingline Rate and shall have an Interest Period (subject to the definition
thereof) as agreed between the Borrower and the Swingline Lender. The aggregate principal amount
of each Swingline Loan shall be not less than $100,000 or a larger multiple of $50,000, or such
other minimum amounts agreed to by the Swingline Lender and the Borrower. The Swingline Lender
will make the proceeds of each Swingline Loan available to the Borrower in Dollars in immediately
available funds at the account specified by the Borrower in the applicable Notice of Swingline
Borrowing not later than 1:00 p.m. on the requested date of such Swingline Loan.




          (c) The Swingline Lender, at any time and from time to time in its sole discretion, may, on
behalf of the Borrower (which hereby irrevocably authorizes and directs the Swingline Lender to act
on its behalf), give a Notice of Revolving Borrowing to the Administrative Agent requesting the
Lenders (including the Swingline Lender) to make Base Rate Loans in an amount equal to the unpaid
principal amount of any Swingline Loan. Each Lender will make the proceeds of its Base Rate Loan
included in such Borrowing available to the
Administrative Agent for the account of the Swingline Lender in accordance with Section
2.5, which will be used solely for the repayment of such Swingline Loan.




          (d) If for any reason a Base Rate Borrowing may not be (as determined in the sole discretion
of the Administrative Agent), or is not, made in accordance with the foregoing provisions, then
each Lender (other than the Swingline Lender) shall purchase an undivided participating interest in
such Swingline Loan in an amount equal to its Pro Rata Share thereof on




20









 




the date that such Base
Rate Borrowing should have occurred. On the date of such required purchase, each Lender shall
promptly transfer, in immediately available funds, the amount of its participating interest to the
Administrative Agent for the account of the Swingline Lender. If such Swingline Loan bears
interest at a rate other than the Base Rate, such Swingline Loan shall automatically become a Base
Rate Loan on the effective date of any such participation and interest shall become payable on
demand.




          (e) Each Lender’s obligation to make a Base Rate Loan pursuant to Section 2.4(c) or to
purchase the participating interests pursuant to Section 2.4(d) shall be absolute and
unconditional and shall not be affected by any circumstance, including without limitation (i) any
setoff, counterclaim, recoupment, defense or other right that such Lender or any other Person may
have or claim against the Swingline Lender, the Borrower or any other Person for any reason
whatsoever, (ii) the existence of a Default or an Event of Default or the termination of any
Lender’s Revolving Commitment, (iii) the existence (or alleged existence) of any event or condition
which has had or could reasonably be expected to have a Material Adverse Effect, (iv) any breach of
this Agreement or any other Loan Document by the Borrower, the Administrative Agent or any Lender
or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the
foregoing. If such amount is not in fact made available to the Swingline Lender by any Lender, the
Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof (i) at the Federal Funds Rate
until the second Business Day after such demand and (ii) at the Base Rate at all times thereafter.
Until such time as such Lender makes its required payment, the Swingline Lender shall be deemed to
continue to have outstanding Swingline Loans in the amount of the unpaid participation for all
purposes of the Loan Documents. In addition, such Lender shall be deemed to have assigned any and
all payments made of principal and interest on its Loans and any other amounts due to it hereunder,
to the Swingline Lender to fund the amount of such Lender’s participation interest in such
Swingline Loans that such Lender failed to fund pursuant to this Section 2.4, until such
amount has been purchased in full.




          Section 2.5. Funding of Borrowings.




          (a) Each Lender will make available (i) each Eurodollar Loan to be made by it hereunder on the
proposed date thereof by wire transfer in immediately available funds by 11:00 a.m. to the
Administrative Agent at the Payment Office and (ii) each Base Rate Loan to be made by it hereunder
on the proposed date thereof by wire transfer in immediately available funds by 3:00 p.m. to the
Administrative Agent at the Payment Office; provided, that the Swingline Loans will be made
as set forth in Section 2.4. The Administrative Agent will make such Loans available to
the Borrower by promptly crediting the amounts that it receives, in like funds by the close of
business on such proposed date, to an account maintained by the Borrower with the
Administrative Agent or at the Borrower’s option, by effecting a wire transfer of such amounts
to an account designated by the Borrower to the Administrative Agent.




          (b) Unless the Administrative Agent shall have been notified by any Lender prior to 5:00 p.m.
one (1) Business Day prior to the date of a Borrowing (or, in the case of Base Rate Loans, prior to
3:00 p.m. on the date of such Borrowing) in which such Lender is to participate that such Lender
will not make available to the Administrative Agent such Lender’s share of such Borrowing, the
Administrative Agent may assume that such Lender has made such




21









 




amount available to the
Administrative Agent on such date, and the Administrative Agent, in reliance on such assumption,
may make available to the Borrower on such date a corresponding amount. If such corresponding
amount is not in fact made available to the Administrative Agent by such Lender on the date of such
Borrowing, the Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender together with interest at the Federal Funds Rate until the second Business
Day after such demand and thereafter at the Base Rate. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative
Agent shall promptly notify the Borrower, and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent together with interest at the rate specified for such Borrowing.
Nothing in this subsection shall be deemed to relieve any Lender from its obligation to fund its
Pro Rata Share of any Borrowing hereunder or to prejudice any rights which the Borrower may have
against any Lender as a result of any default by such Lender hereunder.




          (c) All Revolving Borrowings shall be made by the Lenders on the basis of their respective Pro
Rata Shares. No Lender shall be responsible for any default by any other Lender in its obligations
hereunder, and each Lender shall be obligated to make its Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to make its Loans hereunder.




          Section 2.6. Interest Elections.




          (a) Each Borrowing initially shall be of the Type specified in the applicable Notice of
Borrowing, and in the case of a Eurodollar Borrowing, shall have an initial Interest Period as
specified in such Notice of Borrowing. Thereafter, the Borrower may elect to convert such
Borrowing into a different Type or to continue such Borrowing, and in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this Section 2.6. The
Borrower may elect different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders holding Loans
comprising such Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall NOT apply to Swingline Borrowings, which may not be
converted or continued.




          (b) To make an election pursuant to this Section 2.6, the Borrower shall give the
Administrative Agent prior written notice (or telephonic notice promptly confirmed in writing) of
each Borrowing substantially in the form of Exhibit 2.6 attached hereto (a “Notice of
Conversion/Continuation”) that is to be converted or continued, as the case may be, (x) prior
to 10:00 a.m. on the requested date of a conversion into a Base Rate Borrowing and (y) prior to
11:00 a.m. three (3) Business Days prior to a continuation of or conversion into a Eurodollar
Borrowing. Each such Notice of Conversion/Continuation shall be irrevocable and shall specify
(i) the Borrowing to which such Notice of Conversion/Continuation applies and if different options
are being elected with respect to different portions thereof, the portions thereof that are to be
allocated to each resulting Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) shall be specified for each resulting Borrowing); (ii) the effective date of
the election made pursuant to such Notice of Conversion/Continuation, which shall be a Business
Day, (iii) whether the resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar
Borrowing; and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the Interest Period




22









 




applicable thereto after giving effect to such election, which shall be a period contemplated by
the definition of “Interest Period”. If any such Notice of Conversion/Continuation requests a
Eurodollar Borrowing but does not specify an Interest Period, the Borrower shall be deemed to have
selected an Interest Period of one month. The principal amount of any resulting Borrowing shall
satisfy the minimum borrowing amount for Eurodollar Borrowings and Base Rate Borrowings set forth
in Section 2.3.




          (c) If, on the expiration of any Interest Period in respect of any Eurodollar Borrowing, the
Borrower shall have failed to deliver a Notice of Conversion/Continuation, then, unless such
Borrowing is repaid as provided herein, the Borrower shall be deemed to have elected to convert
such Borrowing to a Base Rate Borrowing. No Borrowing may be converted into, or continued as, a
Eurodollar Borrowing if a Default or an Event of Default exists, unless the Administrative Agent
and each of the Lenders shall have otherwise consented in writing. No conversion of any
Eurodollar Loans shall be permitted except on the last day of the Interest Period in respect
thereof.




          (d) Upon receipt of any Notice of Conversion/Continuation, the Administrative Agent shall
promptly notify each Lender of the details thereof and of such Lender’s portion of each resulting
Borrowing.




          Section 2.7. Optional Reduction and Termination of Revolving Commitments.




          (a) Unless previously terminated, all Revolving Commitments, Swingline Commitments and LC
Commitments shall terminate on the Revolving Commitment Termination Date.




          (b) Upon at least three (3) Business Days’ prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent (which notice shall be irrevocable), the Borrower
may reduce the Aggregate Revolving Commitments in part or terminate the Aggregate Revolving
Commitments in whole; provided, that (i) any partial reduction shall apply to reduce
proportionately and permanently the Revolving Commitment of each Lender, (ii) any partial reduction
pursuant to this Section 2.7 shall be in an amount of at least $5,000,000 and any larger
multiple of $1,000,000, and (iii) no such reduction shall be permitted which would reduce the
Aggregate Revolving Commitment Amount to an amount less than the outstanding Revolving Credit
Exposures of all Lenders. Any such reduction in the Aggregate Revolving Commitment Amount below
the sum of the principal amount of the Swingline Commitment and the LC Commitment shall result in a
proportionate reduction (rounded to the
next lowest integral multiple of $100,000) in the Swingline Commitment and the LC Commitment.




          Section 2.8. Repayment of Loans.




          (a) The outstanding principal amount of all Revolving Loans shall be due and payable (together
with accrued and unpaid interest thereon) on the Revolving Commitment Termination Date.





23











 





          (b) The principal amount of each Swingline Borrowing shall be due and payable (together with
accrued and unpaid interest thereon) on the earlier of (i) the last day of the Interest Period
applicable to such Borrowing and (ii) the Revolving Commitment Termination Date.




          Section 2.9. Evidence of Indebtedness. (a) Each Lender shall maintain in accordance
with its usual practice appropriate records evidencing the Indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender from time to time, including the amounts of
principal and interest payable thereon and paid to such Lender from time to time under this
Agreement. The Administrative Agent shall maintain appropriate records in which shall be recorded
(i) the Revolving Commitment of each Lender, (ii) the amount of each Loan made hereunder by each
Lender, the Class and Type thereof and the Interest Period applicable thereto, (iii) the date of
each continuation thereof pursuant to Section 2.6, (iv) the date of each conversion of all
or a portion thereof to another Type pursuant to Section 2.6, (v) the date and amount of
any principal or interest due and payable or to become due and payable from the Borrower to each
Lender hereunder in respect of such Loans and (vi) both the date and amount of any sum received by
the Administrative Agent hereunder from the Borrower in respect of the Loans and each Lender’s Pro
Rata Share thereof. The entries made in such records shall be prima facie evidence of the
existence and amounts of the obligations of the Borrower therein recorded; provided, that
the failure or delay of any Lender or the Administrative Agent in maintaining or making entries
into any such record or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans (both principal and unpaid accrued interest) of such Lender in
accordance with the terms of this Agreement.




          (b) At the request of any Lender (including the Swingline Lender) at any time, the Borrower
agrees that it will execute and deliver to such Lender a Revolving Credit Note and, in the case of
the Swingline Lender only, a Swingline Note, payable to the order of such Lender.




          Section 2.10. Optional Prepayments. The Borrower shall have the right at any time and
from time to time to prepay any Borrowing, in whole or in part, without premium or penalty, by
giving irrevocable written notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent no later than (i) in the case of prepayment of any Eurodollar Borrowing, 11:00
a.m. not less than three (3) Business Days prior to any such prepayment, (ii) in the case of any
prepayment of any Base Rate Borrowing, 11:00 a.m. on the date of such prepayment, and (iii) in the
case of
Swingline Borrowings, prior to 11:00 a.m. on the date of such prepayment. Each such notice
shall be irrevocable and shall specify the proposed date of such prepayment and the principal
amount of each Borrowing or portion thereof to be prepaid. Prepayments of Base Rate Borrowings or
Eurodollar Borrowings shall be in minimum amounts of $1,000,000 and in integral multiples of
$500,000. Upon receipt of any such notice, the Administrative Agent shall promptly notify each
affected Lender of the contents thereof and of such Lender’s Pro Rata Share of any such prepayment.
If such notice is given, the aggregate amount specified in such notice shall be due and payable on
the date designated in such notice, together with accrued interest to such date on the amount so
prepaid in accordance with Section 2.11(e); provided, that if a Eurodollar
Borrowing is prepaid on a date other than the last day of an Interest Period applicable thereto,
the Borrower shall also pay all amounts required pursuant to Section 2.17. Each partial
prepayment of any Loan (other than a Swingline Loan) shall be in an amount that would be permitted
in the case of an advance of a Revolving Borrowing of the same




24









 







Type pursuant to Section 2.2
or in the case of a Swingline Loan pursuant to Section 2.4. Each prepayment of a Borrowing
shall be applied ratably to the Loans comprising such Borrowing.




          Section 2.11. Interest on Loans.




          (a) The Borrower shall pay interest on each Base Rate Loan at the Base Rate in effect from
time to time and on each Eurodollar Loan at the Adjusted LIBO Rate for the applicable Interest
Period in effect for such Loan, plus, in each case, the Applicable Margin in effect from time to
time.




          (b) The Borrower shall pay interest on each Swingline Loan at the Swingline Rate in effect
from time to time.




          (c) While an Event of Default exists or after acceleration, at the option of the Required
Lenders, the Borrower shall pay interest (“Default Interest”) with respect to all
Eurodollar Loans at the rate otherwise applicable for the then-current Interest Period plus an
additional 2% per annum until the last day of such Interest Period, and thereafter, and with
respect to all Base Rate Loans (including all Swingline Loans) and all other Obligations hereunder
(other than Loans), at the rate in effect for Base Rate Loans, plus an additional 2% per annum.




          (d) Interest on the principal amount of all Loans shall accrue from and including the date
such Loans are made to but excluding the date of any repayment thereof. Interest on all
outstanding Base Rate Loans shall be payable quarterly in arrears on the last day of each March,
June, September and December and on the Revolving Commitment Termination Date. Interest on all
outstanding Eurodollar Loans shall be payable on the last day of each Interest Period applicable
thereto, and, in the case of any Eurodollar Loans having an Interest Period in excess of three
months or 90 days, respectively, on each day which occurs every three months or 90 days, as the
case may be, after the initial date of such Interest Period, and on the Revolving Commitment
Termination Date. Interest on each Swingline Loan shall be payable on the maturity date of such
Loan, which shall be the last day of the Interest Period applicable thereto, and on the Revolving
Commitment Termination Date. Interest on any Loan which is converted into a Loan of another Type
or which is repaid or prepaid shall be payable on the date of such conversion or
on the date of any such repayment or prepayment (on the amount repaid or prepaid) thereof.
All Default Interest shall be payable on demand.




          (e) The Administrative Agent shall determine each interest rate applicable to the Loans
hereunder and shall promptly notify the Borrower and the Lenders of such rate in writing (or by
telephone, promptly confirmed in writing). Any such determination shall be conclusive and binding
for all purposes, absent manifest error.




          Section 2.12. Fees.




          (a) The Borrower shall pay to the Administrative Agent for its own account fees in the amounts
and at the times previously agreed upon in writing by the Borrower and the Administrative Agent.




          (b) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a
commitment fee, which shall accrue at the Applicable Percentage per annum




25









 







(determined daily in
accordance with Schedule I) on the daily amount of the unused Revolving Commitment of such
Lender during the Availability Period. For purposes of computing commitment fees with respect to
the Revolving Commitments, the Revolving Commitment of each Lender shall be deemed used to the
extent of the outstanding Revolving Loans and LC Exposure, but not Swingline Exposure, of such
Lender.




          (c) The Borrower agrees to pay (i) to the Administrative Agent, for the account of each
Lender, a letter of credit fee with respect to its participation in each Letter of Credit, which
shall accrue at a rate per annum equal to the Applicable Margin for Eurodollar Loans then in effect
on the average daily amount of such Lender’s LC Exposure attributable to such Letter of Credit
during the period from and including the date of issuance of such Letter of Credit to but excluding
the date on which such Letter of Credit expires or is drawn in full (including without limitation
any LC Exposure that remains outstanding after the Revolving Commitment Termination Date) and (ii)
to the Issuing Bank for its own account a fronting fee, which shall accrue at the rate of 0.125%
per annum on the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the Availability Period (or until the date
that such Letter of Credit is irrevocably cancelled, whichever is later), as well as the Issuing
Bank’s standard fees with respect to issuance, amendment, renewal or extension of any Letter of
Credit or processing of drawings thereunder. Notwithstanding the foregoing, if the Required
Lenders elect to increase the interest rate on the Loans to the Default Interest pursuant to
Section 2.11(c), the rate per annum used to calculate the letter of credit fee pursuant to
clause (i) above shall automatically be increased by an additional 2% per annum.




          (d) The Borrower shall pay to the Administrative Agent, for the ratable benefit of each
Lender, the upfront fee previously agreed upon by the Borrower and the Administrative Agent, which
shall be due and payable on the Closing Date.




          (e) Accrued fees under paragraphs (b) and (c) above shall be payable quarterly in arrears on
the last day of each March, June, September and December, commencing on September 30, 2008 and on
the Revolving Commitment Termination Date (and if later, the
date the Loans and LC Exposure shall be repaid in their entirety); provided
further, that any such fees accruing after the Revolving Commitment Termination Date shall
be payable on demand.




          Section 2.13. Computation of Interest and Fees.




          All computations of interest and fees hereunder shall be made on the basis of a year of
360 days for the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or fees are payable (to the extent computed on the
basis of days elapsed). Each determination by the Administrative Agent of an interest amount or
fee hereunder shall be made in good faith and, except for manifest error, shall be final,
conclusive and binding for all purposes.




          Section 2.14. Inability to Determine Interest Rates. If prior to the commencement of
any Interest Period for any Eurodollar Borrowing,




26









 









     (i) the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances affecting the
relevant interbank market, adequate means do not exist for ascertaining LIBOR for such
Interest Period, or




     (ii) the Administrative Agent shall have received notice from the Required Lenders that
the Adjusted LIBO Rate does not adequately and fairly reflect the cost to such Lenders of
making, funding or maintaining their Eurodollar Loans for such Interest Period,


the Administrative Agent shall give written notice (or telephonic notice, promptly confirmed in
writing) to the Borrower and to the Lenders as soon as practicable thereafter. In the case of
Eurodollar Loans, until the Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations of the Lenders to
make Eurodollar Revolving Loans or to continue or convert outstanding Loans as or into Eurodollar
Loans shall be suspended and (ii) all such affected Loans shall be converted into Base Rate Loans
on the last day of the then current Interest Period applicable thereto unless the Borrower prepays
such Loans in accordance with this Agreement. Unless the Borrower notifies the Administrative
Agent at least one Business Day before the date of any Eurodollar Revolving Borrowing for which a
Notice of Revolving Borrowing has previously been given that it elects not to borrow on such date,
then such Revolving Borrowing shall be made as a Base Rate Borrowing.




          Section 2.15. Illegality. If any Change in Law shall make it unlawful or impossible
for any Lender to make, maintain or fund any Eurodollar Loan and such Lender shall so notify the
Administrative Agent, the Administrative Agent shall promptly give notice thereof to the Borrower
and the other Lenders, whereupon until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such suspension no longer exist, the obligation of
such Lender to make Eurodollar Revolving Loans, or to continue or convert outstanding Loans as or
into
Eurodollar Loans, shall be suspended. In the case of the making of a Eurodollar Revolving
Borrowing, such Lender’s Revolving Loan shall be made as a Base Rate Loan as part of the same
Revolving Borrowing for the same Interest Period and if the affected Eurodollar Loan is then
outstanding, such Loan shall be converted to a Base Rate Loan either (i) on the last day of the
then current Interest Period applicable to such Eurodollar Loan if such Lender may lawfully
continue to maintain such Loan to such date or (ii) immediately if such Lender shall determine that
it may not lawfully continue to maintain such Eurodollar Loan to such date. Notwithstanding the
foregoing, the affected Lender shall, prior to giving such notice to the Administrative Agent,
designate a different Applicable Lending Office if such designation would avoid the need for giving
such notice and if such designation would not otherwise be disadvantageous to such Lender in the
good faith exercise of its discretion.




          Section 2.16. Increased Costs.




          (a) If any Change in Law shall:





     (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement that is not otherwise included in the determination of the Adjusted LIBO



27









 







Rate
hereunder against assets of, deposits with or for the account of, or credit extended by, any
Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or




     (ii) impose on any Lender or on the Issuing Bank or the eurodollar interbank market any
other condition affecting this Agreement or any Eurodollar Loans made by such Lender or any
Letter of Credit or any participation therein;


and the result of either of the foregoing is to increase the cost to such Lender of making,
converting into, continuing or maintaining a Eurodollar Loan or to increase the cost to such Lender
or the Issuing Bank of participating in or issuing any Letter of Credit or to reduce the amount
received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest
or any other amount), then the Borrower shall promptly pay, upon written notice from and demand by
such Lender on the Borrower (with a copy of such notice and demand to the Administrative Agent), to
the Administrative Agent for the account of such Lender, within five Business Days after the date
of such notice and demand, additional amount or amounts sufficient to compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.




          (b) If any Lender or the Issuing Bank shall have determined that on or after the date of this
Agreement any Change in Law regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender’s or the Issuing Bank’s capital (or on the capital of such
Lender’s or the Issuing Bank’s parent corporation) as a consequence of its obligations hereunder or
under or in respect of any Letter of Credit to a level below that which such Lender or the Issuing
Bank or such Lender’s or the Issuing Bank’s parent corporation could have achieved but for such
Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies or the
policies of such Lender’s or the Issuing Bank’s parent corporation with respect to capital
adequacy) then, from time to time, within five (5) Business Days after receipt by the Borrower of
written demand by such Lender (with a copy thereof to the Administrative
Agent), the Borrower shall pay to such Lender such additional amounts as will compensate such
Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s parent corporation for any such
reduction suffered.




          (c) A certificate of a Lender or the Issuing Bank setting forth: (i) the amount or amounts
necessary to compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s
parent corporation, as the case may be, specified in paragraph (a) or (b) of this Section
2.19 and (ii) in reasonable detail the basis of the calculation of such amount or amounts,
shall be delivered to the Borrower (with a copy to the Administrative Agent) and shall be
conclusive, absent manifest error. The Borrower shall pay any such Lender or the Issuing Bank, as
the case may be, such amount or amounts within 10 days after receipt thereof.




          (d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section 2.16 shall not constitute a waiver of such Lender’s or the Issuing
Bank’s right to demand such compensation.




          Section 2.17. Funding Indemnity. In the event of (a) the payment of any principal of
a Eurodollar Loan other than on the last day of the Interest Period applicable thereto




28









 







(including as a result of an Event of Default), (b) the conversion or continuation of a Eurodollar Loan other
than on the last day of the Interest Period applicable thereto, or (c) the failure by the Borrower
to borrow, prepay, convert or continue any Eurodollar Loan on the date specified in any applicable
notice (regardless of whether such notice is withdrawn or revoked), then, in any such event, the
Borrower shall compensate each Lender, within five (5) Business Days after written demand from such
Lender, for any loss, cost or expense attributable to such event. In the case of a Eurodollar
Loan, such loss, cost or expense shall be deemed to include an amount determined by such Lender to
be the excess, if any, of (A) the amount of interest that would have accrued on the principal
amount of such Eurodollar Loan if such event had not occurred at the Adjusted LIBO Rate applicable
to such Eurodollar Loan for the period from the date of such event to the last day of the then
current Interest Period therefor (or in the case of a failure to borrow, convert or continue, for
the period that would have been the Interest Period for such Eurodollar Loan) over (B) the amount
of interest that would accrue on the principal amount of such Eurodollar Loan for the same period
if the Adjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid or converted or the
date on which the Borrower failed to borrow, convert or continue such Eurodollar Loan. A
certificate setting forth: (i) any additional amount payable under this Section 2.17 and
(ii) in reasonable detail the basis of the calculation of such additional amount, submitted to the
Borrower by any Lender (with a copy to the Administrative Agent) shall be conclusive, absent
manifest error.




          Section 2.18. Taxes.




          (a) Any and all payments by or on account of any obligation of the Borrower hereunder shall be
made free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided, that if the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional sums payable under
this Section 2.18) the Administrative Agent, any Lender or the Issuing Bank (as the case
may be) shall receive an amount equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable law.




          (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.




          (c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within five (5) Business Days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes paid by the Administrative Agent, such Lender or the Issuing Bank, as the case
may be, on or with respect to any payment by or on account of any obligation of the Borrower
hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section 2.18) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate setting forth: (i) the amount of such payment or liability and (ii) in reasonable
detail the basis of the calculation of such payment or liability, delivered to the Borrower by a
Lender or the Issuing Bank, or by the Administrative Agent on its own behalf or on behalf of a
Lender or the Issuing Bank, shall be conclusive absent manifest error.




29









 








          (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.




          (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the Code or any treaty to which the United States is a party, with respect to payments under
this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will permit such payments
to be made without withholding or at a reduced rate. Without limiting the generality of the
foregoing, each Foreign Lender agrees that it will deliver to the Administrative Agent and the
Borrower (or in the case of a Participant, to the Lender from which the related participation shall
have been purchased), as appropriate, two (2) duly completed copies of (i) Internal Revenue Service
Form W-8 ECI, or any successor form thereto, certifying that the payments received from the
Borrower hereunder are effectively connected with such Foreign Lender’s conduct of a trade or
business in the United States; or (ii) Internal Revenue Service Form W-8 BEN, or any successor form
thereto, certifying that such Foreign Lender is entitled to benefits under an income tax treaty to
which the United States is a party which reduces the rate of withholding tax on payments of
interest; or (iii) Internal Revenue Service Form W-8 BEN, or any successor form prescribed by the
Internal Revenue Service, together with a certificate (A) establishing that the payment to the
Foreign Lender qualifies as “portfolio interest” exempt from U.S. withholding tax under Code
section 871(h) or 881(c), and (B) stating that (1) the Foreign Lender is not a bank for purposes of
Code section 881(c)(3)(A), or the obligation of the Borrower hereunder is not, with respect
to such Foreign Lender, a loan agreement entered into in the ordinary course of its trade or
business, within the meaning of that section; (2) the Foreign Lender
is not a 10% shareholder of the Borrower within the meaning of Code section 871(h)(3) or
881(c)(3)(B); and (3) the Foreign Lender is not a controlled foreign corporation that is related to
the Borrower within the meaning of Code section 881(c)(3)(C); or (iv) such other Internal Revenue
Service forms as may be applicable to the Foreign Lender, including Forms W-8 IMY or W-8 EXP. Each
such Foreign Lender shall deliver to the Borrower and the Administrative Agent such forms on or
before the date that it becomes a party to this Agreement (or in the case of a Participant, on or
before the date such Participant purchases the related participation). In addition, each such
Foreign Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Foreign Lender. Each such Foreign Lender shall promptly notify the
Borrower and the Administrative Agent at any time that it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower (or any other form of
certification adopted by the Internal Revenue Service for such purpose).




          Section 2.19. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.




          (a) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under
Sections 2.16, 2.17 or 2.18, or otherwise) prior to 12:00 noon on the date
when due, in immediately available funds, free and clear of any defenses, rights of set-off,
counterclaim, or withholding or deduction of taxes. Any amounts received after such time on any




30









 







date may, in the discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All such payments shall
be made to the Administrative Agent at the Payment Office, except payments to be made directly to
the Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.16, 2.17 and 2.18 and 10.3 shall be made directly to
the Persons entitled thereto. The Administrative Agent shall distribute any such payments received
by it for the account of any other Person to the appropriate recipient promptly following receipt
thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be made payable for the period of such extension. All
payments hereunder shall be made in Dollars.




          (b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed
LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal and unreimbursed LC Disbursements then due to such parties.




          (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
participations in LC Disbursements or Swingline Loans that would result in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans and
participations in LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Revolving Loans and participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving Loans and participations in LC
Disbursements and Swingline Loans; provided, that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any
assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to
which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the Borrower rights of
set-off and counterclaim with respect to such participation as fully as if such Lender were a
direct creditor of the Borrower in the amount of such participation.




          (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the




31









 







account of the Lenders or the
Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be,
the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then
each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is distributed to it to
but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.




          (e) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.4(b), 2.5(b), 2.19(d), 2.20(d) or (e) or
10.3(d), then the Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender’s obligations under such Sections until all such
unsatisfied obligations are fully paid.




          Section 2.20. Letters of Credit.




          (a) During the Availability Period, the Issuing Bank, in reliance upon the agreements of the
other Lenders pursuant to Section 2.20(d), agrees to issue, at the request of the Borrower,
Letters of Credit for the account of the Borrower on the terms and conditions hereinafter set
forth; provided, that (i) each Letter of Credit shall expire on the earlier of (A) the date
one year after the date of issuance of such Letter of Credit (or in the case of any renewal or
extension thereof, one year after such renewal or extension) and (B) the date that is five (5)
Business Days prior to the Revolving Commitment Termination Date; (ii) each Letter of Credit shall
be in a stated amount of at least $100,000; and (iii) the Borrower may not request any Letter of
Credit, if, after giving effect to such issuance (A) the aggregate LC Exposure would exceed the LC
Commitment or (B) the aggregate Revolving Credit Exposure of all Lenders would exceed the Aggregate
Revolving Commitment Amount. Each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank without recourse a participation in each
Letter of Credit equal to such Lender’s Pro Rata Share of the aggregate amount available to be
drawn under such Letter of Credit on the date of issuance with respect to all other Letters of
Credit. Each issuance of a Letter of Credit shall be deemed to utilize the Revolving Commitment of
each Lender by an amount equal to the amount of such participation.




          (b) To request the issuance of a Letter of Credit (or any amendment, renewal or extension of
an outstanding Letter of Credit), the Borrower shall give the Issuing Bank and the Administrative
Agent irrevocable written notice at least three (3) Business Days prior to the requested date of
such issuance specifying the date (which shall be a Business Day) such Letter of Credit is to be
issued (or amended, extended or renewed, as the case may be), the expiration date of such Letter of
Credit, the amount of such Letter of Credit, the name and address of the beneficiary thereof and
such other information as shall be necessary to prepare, amend, renew or extend such Letter of
Credit. In addition to the satisfaction of the conditions in Article III, the issuance of
such Letter of Credit (or any amendment which increases the amount of such Letter of Credit) will
be subject to the further conditions that such Letter of Credit shall be in such form and contain
such terms as the Issuing Bank shall approve and that the Borrower shall have executed




32









 







and
delivered any additional applications, agreements and instruments relating to such Letter of Credit
as the Issuing Bank shall reasonably require; provided, that in the event of any conflict
between such applications, agreements or instruments and this Agreement, the terms of this
Agreement shall control.




          (c) At least two Business Days prior to the issuance of any Letter of Credit, the Issuing Bank
will confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received such notice and if not, the Issuing Bank will provide the Administrative Agent
with a copy thereof. Unless the Issuing Bank has received notice from the Administrative Agent on
or before the Business Day immediately preceding the date the Issuing Bank is to issue the
requested Letter of Credit (1) directing the Issuing Bank not to issue the Letter of Credit because
such issuance is not then permitted hereunder because of the limitations set forth in Section
2.20(a) or that one or more conditions specified in Article III are not then satisfied,
then, subject to the terms and conditions hereof, the Issuing Bank shall, on the requested date,
issue such Letter of Credit in accordance with the Issuing Bank’s usual and customary business
practices.




          (d) The Issuing Bank shall examine all documents purporting to represent a demand for payment
under a Letter of Credit promptly following its receipt thereof. The Issuing Bank shall notify the
Borrower and the Administrative Agent of such demand for payment and whether the Issuing Bank has
made or will make a LC Disbursement thereunder; provided, that any failure to give or delay
in giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing
Bank and the Lenders with respect to such LC Disbursement. The Borrower shall be irrevocably and
unconditionally obligated to reimburse the Issuing Bank for
any LC Disbursements paid by the Issuing Bank in respect of such drawing, without presentment,
demand or other formalities of any kind. Unless the Borrower shall have notified the Issuing Bank
and the Administrative Agent prior to 11:00 a.m. on the Business Day immediately prior to the date
on which such drawing is honored that the Borrower intends to reimburse the Issuing Bank for the
amount of such drawing in funds other than from the proceeds of Revolving Loans, the Borrower shall
be deemed to have timely given a Notice of Revolving Borrowing to the Administrative Agent
requesting the Lenders to make a Base Rate Borrowing on the date on which such drawing is honored
in an exact amount due to the Issuing Bank; provided, that for purposes solely of such
Borrowing, the conditions precedent set forth in Section 3.2 hereof shall not be
applicable. The Administrative Agent shall notify the Lenders of such Borrowing in accordance with
Section 2.3, and each Lender shall make the proceeds of its Base Rate Loan included in such
Borrowing available to the Administrative Agent for the account of the Issuing Bank in accordance
with Section 2.5. The proceeds of such Borrowing shall be applied directly by the
Administrative Agent to reimburse the Issuing Bank for such LC Disbursement.




          (e) If for any reason a Base Rate Borrowing may not be (as determined in the sole discretion
of the Administrative Agent), or is not, made in accordance with the foregoing provisions, then
each Lender (other than the Issuing Bank) shall be obligated to fund the participation that such
Lender purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share of such LC
Disbursement on and as of the date which such Base Rate Borrowing should have occurred. Each
Lender’s obligation to fund its participation shall be absolute and unconditional and shall not be
affected by any circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may




33









 







have against the
Issuing Bank or any other Person for any reason whatsoever, (ii) the existence of a Default or an
Event of Default or the termination of the Aggregate Revolving Commitments, (iii) any adverse
change in the condition (financial or otherwise) of the Borrower or any of its Subsidiaries, (iv)
any breach of this Agreement by the Borrower or any other Lender, (v) any amendment, renewal or
extension of any Letter of Credit or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. On the date that such participation is required to
be funded, each Lender shall promptly transfer, in immediately available funds, the amount of its
participation to the Administrative Agent for the account of the Issuing Bank. Whenever, at any
time after the Issuing Bank has received from any such Lender the funds for its participation in a
LC Disbursement, the Issuing Bank (or the Administrative Agent on its behalf) receives any payment
on account thereof, the Administrative Agent or the Issuing Bank, as the case may be, will
distribute to such Lender its Pro Rata Share of such payment; provided, that if such
payment is required to be returned for any reason to the Borrower or to a trustee, receiver,
liquidator, custodian or similar official in any bankruptcy proceeding, such Lender will return to
the Administrative Agent or the Issuing Bank any portion thereof previously distributed by the
Administrative Agent or the Issuing Bank to it.




          (f) To the extent that any Lender shall fail to pay any amount required to be paid pursuant to
paragraphs (d) or (e) above on the due date therefor, such Lender shall pay interest to the Issuing
Bank (through the Administrative Agent) on such amount from such due date to the date such payment
is made at a rate per annum equal to the Federal Funds Rate; provided, that if such Lender
shall fail to make such payment to the Issuing Bank within three (3) Business Days of such due
date, then, retroactively to the due date, such Lender shall be obligated to pay interest on such
amount at the rate set forth in Section 2.11(c).




          (g) If any Event of Default shall occur and be continuing, on the Business Day that the
Borrower receives notice from the Administrative Agent or the Required Lenders demanding the
deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit in an account
with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the
Issuing Bank and the Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid fees thereon; provided, that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become immediately due and
payable, without demand or notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (g) or (h) of Section 8.1. Such deposit shall
be held by the Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such account. Borrower
agrees to execute any documents and/or certificates to effectuate the intent of this paragraph.
Other than any interest earned on the investment of such deposits, which investments shall be made
at the option and sole discretion of the Administrative Agent and at the Borrower’s risk and
expense, such deposits shall not bear interest. Interest and profits, if any, on such investments
shall accumulate in such account. Moneys in such account shall be applied by the Administrative
Agent to reimburse the Issuing Bank for LC Disbursements for which it had not been reimbursed and
to the extent so applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been
accelerated, with the consent of the Required Lenders, be applied to satisfy other obligations of
the Borrower under this Agreement and the other Loan Documents. If the




34









 







Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of an Event of
Default, such amount (to the extent not so applied as aforesaid), including interest and profits,
if any, on any such investments, as aforesaid, shall be returned to the Borrower within three
Business Days after all Events of Default have been cured or waived.




          (h) Promptly following the end of each calendar quarter, the Issuing Bank shall deliver
(through the Administrative Agent) to each Lender and the Borrower a report describing the
aggregate Letters of Credit outstanding at the end of such Fiscal Quarter. Upon the request of any
Lender from time to time, the Issuing Bank shall deliver to such Lender any other information
reasonably requested by such Lender with respect to each Letter of Credit then outstanding.




          (i) The Borrower’s obligation to reimburse LC Disbursements hereunder shall be absolute,
unconditional and irrevocable and shall be performed strictly in accordance with the terms of this
Agreement under all circumstances whatsoever and irrespective of any of the following
circumstances:





     (i) Any lack of validity or enforceability of any Letter of Credit or this Agreement;




     (ii) The existence of any claim, set-off, defense or other right which the Borrower or
any Subsidiary or Affiliate of the Borrower may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons or entities for whom any such
beneficiary or transferee may be acting), any Lender (including the Issuing
Bank) or any other Person, whether in connection with this Agreement or the Letter of
Credit or any document related hereto or thereto or any unrelated transaction;




     (iii) Any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect;




     (iv) Payment by the Issuing Bank under a Letter of Credit against presentation of a
draft or other document to the Issuing Bank that does not comply with the terms of such
Letter of Credit;




     (v) Any other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section 2.20, constitute a
legal or equitable discharge of, or provide a right of setoff against, the Borrower’s
obligations hereunder; or




     (vi) The existence of a Default or an Event of Default.


Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related Party of any of the
foregoing shall have any liability or responsibility by reason of or in connection with the
issuance or transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to above), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to make a drawing




35









 







thereunder), any error in interpretation of technical terms or any consequence arising from causes
beyond the control of the Issuing Bank; provided, that the foregoing shall not be construed
to excuse the Issuing Bank from liability to the Borrower to the extent of any actual direct
damages (as opposed to special, indirect (including claims for lost profits or other consequential
damages), or punitive damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by the Issuing Bank’s
failure to exercise due care when determining whether drafts or other documents presented under a
Letter of Credit comply with the terms thereof. The parties hereto expressly agree, that in the
absence of gross negligence or willful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have
exercised due care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to documents presented that
appear on their face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or information to the
contrary, or refuse to accept and make payment upon such documents if such documents are not in
strict compliance with the terms of such Letter of Credit.




          (j) Unless otherwise expressly agreed by the Issuing Bank and the Borrower when a Letter of
Credit is issued and subject to applicable laws, performance under Letters of Credit by the Issuing
Bank, its correspondents, and the beneficiaries thereof will be governed by (i) either (x) the
rules of the “International Standby Practices 1998” (ISP98) (or such later revision as may be
published by the Institute of International Banking Law & Practice on any date any
Letter of Credit may be issued) or (y) the rules of the “Uniform Customs and Practices for
Documentary Credits” (2007 Revision), International Chamber of Commerce Publication No. 600 (or
such later revision as may be published by the International Chamber of Commerce on any date any
Letter of Credit may be issued) and (ii) to the extent not inconsistent therewith, the governing
law of this Agreement set forth in Section 10.5.




          Section 2.21. Increase of Revolving Commitments; Additional Lenders.




          (a) So long as no Default or Event of Default has occurred and is continuing, from time to
time after the Closing Date, Borrower may, upon at least 30 days’ written notice to the
Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to
increase the Aggregate Revolving Commitments by an amount not to exceed $100,000,000 (the amount of
any such increase, the “Additional Revolving Commitment Amount”); provided, that
any proposed Additional Revolving Commitment Amount shall not be less than $20,000,000. Each
Lender shall have the right for a period of 15 days following receipt of such notice, to elect by
written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by
a principal amount equal to its Pro Rata Share of the Additional Revolving Commitment Amount. No
Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or
its other obligations under this Agreement and the other Loan Documents, and any decision by a
Lender to increase its Revolving Commitment shall be made in its sole discretion independently from
any other Lender.




          (b) If any Lender shall not elect to increase its Revolving Commitment pursuant to subsection
(a) of this Section 2.21, the Borrower may designate another bank or other




36









 







financial institution
(which may be, but need not be, one or more of the existing Lenders) which at the time agrees to,
in the case of any such Person that is an existing Lender, increase its Revolving Commitment and in
the case of any other such Person (an “Additional Lender”), become a party to this
Agreement; provided, however, that any new bank or financial institution must be
acceptable to the Administrative Agent (which acceptance shall not unreasonably be withheld) and
the Borrower. The sum of the increases in the Revolving Commitments of the existing Lenders
pursuant to this subsection (b) plus the Revolving Commitments of the Additional Lenders shall not
in the aggregate exceed the unsubscribed amount of the Additional Revolving Commitment Amount.




          (c) An increase in the aggregate amount of the Revolving Commitments pursuant to this Section
2.21 shall become effective upon the receipt by the Administrative Agent of an supplement or
joinder in form and substance satisfactory to the Administrative Agent executed by the Borrower and
by each Additional Lender and by each other Lender whose Revolving Commitment is to be increased,
setting forth the new Revolving Commitments of such Lenders and setting forth the agreement of each
Additional Lender to become a party to this Agreement and to be bound by all the terms and
provisions hereof, together with Notes evidencing such increase in the Revolving Commitments, and
such evidence of appropriate corporate authorization on the part of the Borrower with respect to
the increase in the Revolving Commitments and such opinions of counsel for the Borrower with
respect to the increase in the Revolving Commitments as the Administrative Agent may reasonably
request.




          (d) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate
Revolving Commitment Amount shall automatically be increased by the amount of the Revolving
Commitments added through such agreement and Schedule II shall automatically be deemed
amended to reflect the Revolving Commitments of all Lenders after giving effect to the addition of
such Revolving Commitments.




          (e) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this
Section 2.21 that is not pro rata among all Lenders, (x) within five Business Days, in the case of
any Base Rate Loans then outstanding, and at the end of the then current Interest Period with
respect thereto, in the case of any Eurodollar Loans then outstanding, the Borrower shall prepay
such Loans in their entirety and, to the extent the Borrower elects to do so and subject to the
conditions specified in Article III, the Borrower shall reborrow Loans from the Lenders in
proportion to their respective Revolving Commitments after giving effect to such increase, until
such time as all outstanding Loans are held by the Lenders in proportion to their respective
Revolving Commitments after giving effect to such increase and (y) effective upon such increase,
the amount of the participations held by each Lender in each Letter of Credit then outstanding
shall be adjusted automatically such that, after giving effect to such adjustments, the Lenders
shall hold participations in each such Letter of Credit in proportion to their respective Revolving
Commitments.




          Section 2.22. Mitigation of Obligations. If any Lender requests compensation under
Section 2.16, or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 2.18, then
such Lender shall use reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to another of its
offices,




37









 







branches or affiliates, if, in the sole judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable under Section 2.16 or Section
2.18, as the case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all costs and expenses incurred by any Lender in connection with such
designation or assignment, promptly upon such Lender’s provision to the Borrower of reasonable
documentation of such costs and expenses.




          Section 2.23. Replacement of Lenders. If any Lender requests compensation under
Section 2.16, or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority of the account of any Lender pursuant to Section 2.18, or if any
Lender defaults in its obligation to fund Loans hereunder, then the Borrower may, at its sole
expense and effort (but without prejudice to any rights or remedies the Borrower may have against a
defaulting Lender), upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the restrictions set forth
in Section 10.4(b) all its interests, rights and obligations under this Agreement to an
assignee that shall assume such obligations (which assignee may be another Lender);
provided, that (i) the Borrower shall have received the prior written consent of the
Administrative Agent, which consent shall not be unreasonably withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal amount of all Loans owed to it,
accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (in the case of such outstanding
principal and accrued interest) and from the Borrower (in the case of all other amounts) and
(iii) in the case of a claim for compensation under Section 2.16 or payments required to be
made pursuant to Section 2.18, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation cease to apply.




ARTICLE III




CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT




          Section 3.1. Conditions To Effectiveness. The obligations of the Lenders (including
the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any Letter of
Credit hereunder shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 10.2).




          (a) The Administrative Agent shall have received all fees and other amounts due and payable on
or prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses
(including reasonable fees, charges and disbursements of counsel to the Administrative Agent)
required to be reimbursed or paid by the Borrower hereunder, under any other Loan Document and
under any agreement with the Administrative Agent or SunTrust Robinson Humphrey, Inc. and Fifth
Third Bank, an Ohio Banking Corporation, as Joint Lead Arrangers.




38









 








          (b) The Administrative Agent (or its counsel) shall have received the following:





     (i) a counterpart of this Agreement signed by or on behalf of each party hereto or
written evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement;




     (ii) duly executed Revolving Credit Notes payable to each Lender;




     (iii) a duly executed payoff letter, in form and substance satisfactory to
Administrative Agent, executed by the Borrower and the administrative agent under that
certain 5-year Competitive Advance and Revolving Credit Facility Agreement dated as of
June 29, 2006 among the Company, the banks and other parties from time to time party
thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent thereunder, together with
other documents reasonably required by the Administrative Agent to evidence the payoff of
Indebtedness owed pursuant to the Existing Credit Agreement;




     (iv) a certificate of the Secretary or Assistant Secretary of the Borrower in the form
of Exhibit 3.1(b)(iv), attaching and certifying copies of its code of regulations
and of
the resolutions of its board of directors authorizing the execution, delivery and
performance of the Loan Documents to which it is a party and certifying the name, title and
true signature of each officer of the Borrower executing the Loan Documents to which it is a
party;




     (v) certified copies of the articles of incorporation of the Borrower, together with a
certificate of good standing from the Secretary of State of the jurisdiction of
incorporation of the Borrower;




     (vi) a favorable written opinion of Baker & Hostetler, LLP, counsel to the Borrower,
addressed to the Administrative Agent and each of the Lenders, and covering such matters
relating to the Borrower, the Loan Documents and the transactions contemplated therein as
the Administrative Agent or the Required Lenders shall reasonably request;




     (vii) a certificate in the form of Exhibit 3.1(b)(vii), dated the Closing Date
and signed by a Responsible Officer, certifying that (x) no Default or Event of Default
exists, (y) all representations and warranties of the Borrower set forth in the Loan
Documents are true and correct and (z) since the date of the financial statements of the
Borrower described in Section 4.4, there shall have been no change which has had or
could reasonably be expected to have a Material Adverse Effect;




     (viii) a duly executed Notice of Borrowing;




     (ix) certified copies of all consents, approvals, authorizations, registrations and
filings and orders required or advisable to be made or obtained under any Requirement of
Law, or by any Contractual Obligation of the Borrower, in connection with the execution,
delivery, performance, validity and enforceability of the Loan Documents or any of the



39









 







transactions contemplated thereby, and such consents, approvals, authorizations,
registrations, filings and orders shall be in full force and effect and all applicable
waiting periods shall have expired, and no investigation or inquiry by any Governmental
Authority regarding this Agreement or any transaction being financed with the proceeds
hereof shall be ongoing;




     (x) copies of (A) the internally prepared pro forma quarterly financial statements of
Borrower and its Subsidiaries (as if the Spin-off and the transactions contemplated thereby
had occurred prior to the beginning of said Fiscal Quarter) on a consolidated basis for the
Fiscal Quarter ended on March 31, 2008, and (B) the audited consolidated financial
statements for Borrower and its Subsidiaries for the Fiscal Years ended 2005, 2006 and 2007
including balance sheets, statements of income, stockholders’ equity and cash flows, all in
reasonable detail and reported on by independent public accountants of nationally recognized
standing and in accordance with GAAP (references to the Borrower’s Subsidiaries in “(B)” of
this clause (x) shall mean the actual Subsidiaries of the Borrower during the specified
periods);




     (xi) a duly completed and executed certificate of the type described in
Section 5.1(c) including calculations of the financial covenants set forth in
Article VI
hereof as of March 31, 2008, prepared on a pro forma basis after giving effect to the
Spin-off and the other transactions contemplated by this Agreement;




     (xii) confirmation that no litigation, investigation or proceeding of or before any
arbitrators or Governmental Authorities is pending against or, to the knowledge of the
Borrower, threatened against the Borrower or any of its Subsidiaries that could reasonably
be expected to have a Material Adverse Effect; and




     (xiv) evidence that the Borrower’s Notes due December 15, 2009, June 30, 2010 and July
15, 2012 have been repaid.



          Section 3.2. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit is subject to the satisfaction of the following conditions:




          (a) at the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of
Default shall exist;




          (b) at the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, all representations and
warranties of the Borrower set forth in the Loan Documents shall be true and correct in all
material respects on and as of the date of such Borrowing or the date of issuance, amendment,
extension or renewal of such Letter of Credit, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such representations and warranties
shall be true and correct in all material respects as of such earlier date), in each case before
and after giving effect thereto;




40









 








          (c) since the date of the financial statements of the Borrower described in Section
4.4, there shall have been no change which has had or could reasonably be expected to have a
Material Adverse Effect;




          (d) the Borrower shall have delivered the required Notice of Borrowing, if applicable; and




          (e) the Administrative Agent shall have received such other documents, certificates or
information as the Administrative Agent or the Required Lenders may reasonably request, all in form
and substance reasonably satisfactory to the Administrative Agent or the Required Lenders.




          Each Borrowing and each issuance, amendment, extension or renewal of any Letter of Credit
shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as
to the matters specified in paragraphs (a), (b) and (c) of this Section 3.2.




          Section 3.3. Delivery of Documents. All of the Loan Documents, certificates, legal
opinions and other documents and papers referred to in this Article III, unless otherwise
specified, shall be delivered
to the Administrative Agent for the account of each of the Lenders and, except for the Notes,
in sufficient counterparts or copies for each of the Lenders and shall be in form and substance
satisfactory in all respects to the Administrative Agent.




ARTICLE IV




REPRESENTATIONS AND WARRANTIES




          The Borrower represents and warrants to the Administrative Agent and each Lender as follows:




          Section 4.1. Existence; Power. The Borrower and each of its Subsidiaries (i) is duly
organized, validly existing and in good standing as a corporation, partnership or limited liability
company under the laws of the jurisdiction of its organization, (ii) has all requisite power and
authority to carry on its business as now conducted, and (iii) is duly qualified to do business,
and is in good standing, in each jurisdiction where such qualification is required, except where a
failure to be so qualified could not reasonably be expected to result in a Material Adverse Effect.




          Section 4.2. Organizational Power; Authorization. The execution, delivery and
performance by the Borrower of the Loan Documents to which it is a party are within the Borrower’s
organizational powers and have been duly authorized by all necessary organizational, and if
required, shareholder, partner or member, action. This Agreement has been duly executed and
delivered by the Borrower, and constitutes, and each other Loan Document to which the Borrower is a
party, when executed and delivered by the Borrower, will constitute, valid and binding obligations
of the Borrower, enforceable against it in accordance with their respective terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
the enforcement of creditors’ rights generally and by general principles of equity.




41









 








          Section 4.3. Governmental Approvals; No Conflicts. The execution, delivery and
performance by the Borrower of this Agreement and each of the other Loan Documents to which it is a
party (a) do not require any consent or approval of, registration or filing with, or any action by,
any Governmental Authority, except those as have been obtained or made and are in full force and
effect, and except for filings required by applicable securities laws and regulations, which
filings have been made or will be made on or prior to the date on which such filings are required
to be made, (b) will not violate any Requirements of Law applicable to the Borrower or any of its
Subsidiaries or any judgment, order or ruling of any Governmental Authority, (c) will not violate
or result in a default under any indenture, material agreement or other material instrument binding
on the Borrower or any of its Subsidiaries or any of its assets or give rise to a right thereunder
to require any payment to be made by the Borrower or any of its Subsidiaries and (d) will not
result in the creation or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries, except Liens (if any) created under the Loan Documents.




          Section 4.4. Financial Statements. The Borrower has furnished to each Lender (i) the
audited consolidated balance sheet of the Borrower and its Subsidiaries (actual Subsidiaries of the
Borrower during the specified period) as of December 31, 2007 and the related consolidated
statements of income, shareholders’ equity and cash flows for the Fiscal Year then ended,
accompanied by the opinion of Deloitte & Touche LLP and (ii) the pro forma (as if the Spin-off and
the transactions contemplated thereby had occurred prior to the beginning of the relevant period)
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of March 31, 2008, and
the related unaudited consolidated statements of income and cash flows for the Fiscal Quarter and
year-to-date period then ending, certified by a Responsible Officer. Such financial statements
fairly present the consolidated financial condition of the Borrower and its Subsidiaries as of such
dates and the consolidated results of operations for such periods in conformity with GAAP
consistently applied, subject to year end audit adjustments and the absence of footnotes, and on a
pro forma basis, in the case of the statements referred to in clause (ii). Since December 31, 2007,
except for the Spin-off and the transactions contemplated thereby, there have been no changes with
respect to the Borrower and its Subsidiaries which have had or could reasonably be expected to
have, singly or in the aggregate, a Material Adverse Effect.




          Section 4.5. Litigation and Environmental Matters.




          (a) No litigation, investigation or proceeding of or before any arbitrators or Governmental
Authorities is pending against or, to the knowledge of the Borrower, threatened against the
Borrower or any of its Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination that could reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect or (ii) which in any manner draws into question the validity or
enforceability of this Agreement or any other Loan Document.




          (b) Except for the matters set forth on Schedule 4.5, neither the Borrower nor any of
its Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or
comply with any permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental Liability,




42









 







except,
in the case of any of the foregoing, where such failure or actual or possible liability, either
singly or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.




          Section 4.6. Compliance with Laws and Agreements. The Borrower and each Subsidiary is
in compliance with (a) all Requirements of Law and all judgments, decrees and orders of any
Governmental Authority and (b) all indentures, agreements or other instruments binding upon it or
its properties, except where non-compliance, either singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.




          Section 4.7. Investment Company Act, Etc. Neither the Borrower nor any of its
Subsidiaries is (a) an “investment company” or is “controlled” by an “investment company”, as such
terms are defined in, or subject to regulation under, the Investment Company Act of 1940, as
amended, (b) a
“holding company” as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935, as amended or (c) otherwise subject to any other regulatory scheme limiting
its ability to incur debt or requiring any approval or consent from or registration or filing with,
any Governmental Authority in connection therewith.




          Section 4.8. Taxes. The Borrower and its Subsidiaries have timely filed or caused to
be filed all Federal income tax returns and all other material tax returns that are required to be
filed by them, and have paid all taxes shown to be due and payable on such returns or on any
assessments made against it or its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority, except where the same are currently being
contested in good faith by appropriate proceedings and for which the Borrower or such Subsidiary,
as the case may be, has set aside on its books adequate reserves in accordance with GAAP. The
charges, accruals and reserves on the books of the Borrower and its Subsidiaries in respect of such
taxes are adequate, and no tax liabilities that could be materially in excess of the amount so
provided are anticipated.




          Section 4.9. Margin Regulations. None of the proceeds of any of the Loans or Letters
of Credit will be used, directly or indirectly, for “purchasing” or “carrying” any “margin stock”
with the respective meanings of each of such terms under Regulation U of the Board of Governors of
the Federal Reserve System as now and from time to time hereafter in effect or for any purpose that
violates the provisions of the Regulation U. Neither the Borrower nor its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying “margin stock.”




          Section 4.10. ERISA. Except as set forth on Schedule 4.10, no ERISA Event has
occurred or is reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be expected to result
in a Material Adverse Effect. Except as set forth on Schedule 4.10, the present value of
all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of the assets of such Plan.




43









 








          Section 4.11. Ownership of Property.




          (a) Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests
in, all of its real and tangible personal property material to the operation of its business,
including all such properties reflected in the most recent audited consolidated balance sheet of
the Borrower referred to in Section 4.4 or purported to have been acquired by the Borrower
or any Subsidiary after said date (except as sold or otherwise disposed of in the ordinary course
of business or in connection with the Spin-off and the transactions contemplated thereby), in each
case free and clear of Liens prohibited by this Agreement. All leases that individually or in the
aggregate are material to the business or operations of the Borrower and its Subsidiaries are valid
and subsisting and are in full force.




          (b) Except as set forth on Schedule 4.11(b), each of the Borrower and its Subsidiaries
owns, or is licensed, or otherwise has the right, to use, all patents, trademarks, service marks,
trade names, copyrights and other intellectual property material to its business, and the use
thereof by the Borrower and its Subsidiaries does not infringe in any material respect on the
rights of any other Person, except where the failure to have such rights, or any such infringement,
could not reasonably be expected to result in a Material Adverse Effect.




          (c) Except as set forth on Schedule 4.11(c), the properties of the Borrower and its
Subsidiaries are insured with financially sound and reputable insurance companies which are not
Affiliates of the Borrower, in such amounts with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning similar properties in
localities where the Borrower or any applicable Subsidiary operates.




          Section 4.12. Disclosure. The Borrower has duly filed all reports required to be
filed with the Securities and Exchange Commission. None of the reports (including without
limitation all reports that the Borrower is required to file with the Securities and Exchange
Commission), financial statements, certificates or other information furnished by or on behalf of
the Borrower to the Administrative Agent or any Lender in connection with the negotiation or
syndication of this Agreement or any other Loan Document or delivered hereunder or thereunder (as
modified or supplemented by any other information so furnished) contains any material misstatement
of fact or omits to state any material fact necessary to make the statements therein, taken as a
whole, in light of the circumstances under which they were made, not misleading; provided, that
with respect to projected financial information, the Borrower represents only that such information
was prepared in good faith based upon assumptions believed to be reasonable at the time.




          Section 4.13. Labor Relations. There are no strikes, lockouts or other material labor
disputes or grievances against the Borrower or any of its Subsidiaries, or, to the Borrower’s
knowledge, threatened against the Borrower or any of its Subsidiaries, and no significant unfair
labor practice, charges or grievances are pending against the Borrower or any of its Subsidiaries,
or to the Borrower’s knowledge, threatened against any of them before any Governmental Authority.
All payments due from the Borrower or any of its Subsidiaries pursuant to the provisions of any
collective bargaining agreement have been paid or accrued as a liability on the books of the
Borrower or any such Subsidiary, except where the failure to do so could not reasonably be expected
to have a Material Adverse Effect.




44









 








          Section 4.14. Subsidiaries. Schedule 4.14 sets forth the name of, the
ownership interest of the Borrower in, the jurisdiction of incorporation or organization of, and
the type of, each Subsidiary.




          Section 4.15. Insolvency. After giving effect to the execution and delivery of the
Loan Documents, the making of the Loans under this Agreement, and the repayment of the refinanced
Indebtedness, neither the Borrower nor its Subsidiaries will be “insolvent,” within the meaning of
such term as defined in § 101 of Title 11 of the United States Code, as amended from time to time,
or be unable to pay its debts generally as such debts become due, or have an unreasonably small
capital to engage in any business or transaction, whether current or contemplated.




          Section 4.16. OFAC. The Borrower (i) is not a person whose property or interest in
property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of
September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten
to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) does not engage in any dealings
or transactions prohibited by Section 2 of such executive order, or is not otherwise associated
with any such person in any manner violative of Section 2, or (iii) is not a person on the list of
Specially Designated Nationals and Blocked Persons or subject to the limitations or prohibitions
under any other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or
executive order.




          Section 4.17. Patriot Act. The Borrower is in compliance, in all material respects,
with (i) the Trading with the Enemy Act, as amended, and each of the foreign assets control
regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended)
and any other enabling legislation or executive order relating thereto, and (ii) the Uniting And
Strengthening America By Providing Appropriate Tools Required To Intercept And Obstruct Terrorism
(USA Patriot Act of 2001). No part of the proceeds of the Loans will be used, directly or
indirectly, for any payments to any governmental official or employee, political party, official of
a political party, candidate for political office, or anyone else acting in an official capacity,
in order to obtain, retain or direct business or obtain any improper advantage, in violation of the
United States Foreign Corrupt Practices Act of 1977, as amended.




ARTICLE V




AFFIRMATIVE COVENANTS




          The Borrower covenants and agrees that so long as any Lender has a Revolving Commitment
hereunder or any Obligation remains unpaid or outstanding:




          Section 5.1. Financial Statements and Other Information. The Borrower will deliver to
the Administrative Agent and each Lender:




          (a) as soon as available and in any event within 90 days after the end of each Fiscal Year of
Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its
Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries




45









 







as of
the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity
and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such
Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal
Year, all in reasonable detail and reported on by Deloitte & Touche LLP or other independent public
accountants of nationally recognized standing (without a “going concern” or like qualification,
exception or explanation and without any qualification or exception as to scope of such audit) to
the effect that such financial statements present fairly in all material respects the financial
condition and the results of operations of the Borrower and its Subsidiaries for such



Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such
accountants in connection with such consolidated financial statements has been made in accordance
with generally accepted auditing standards;




          (b) as soon as available and in any event within 60 days after the end of each of the first
three Fiscal Quarters of the Borrower, an unaudited consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated
statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter
and the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form
the figures for the corresponding quarter and the corresponding portion of Borrower’s previous
Fiscal Year;




          (c) concurrently with the delivery of the financial statements referred to in clauses (a) and
(b) above, a Compliance Certificate signed by the chief financial officer or treasurer of the
Borrower, (i) certifying as to whether there exists a Default or Event of Default on the date of
such certificate, and if a Default or an Event of Default then exists, specifying the details
thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii)
setting forth in reasonable detail calculations demonstrating compliance with the financial
covenants set forth in Article VI, and (iii) stating whether any change in GAAP or the
application thereof has occurred since the date of the Borrower’s audited financial statements
referred to in Section 4.4 and, if any change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate; provided, however, that no action
shall be required by the Borrower under this clause (iii) to the extent any such change in GAAP or
the application thereof does not affect or apply to the Borrower and its Subsidiaries, including
the presentation by the Borrower of its financial statements;




          (d) concurrently with the delivery of the financial statements referred to in clause (a)
above, a list of all sales or other dispositions of assets made pursuant to Section 7.6(c)
of this Agreement by the Borrower and its Subsidiaries during the Fiscal Year most recently ended,
including a description of the type of replacement assets and amount and type of other proceeds, if
any, received from such sales or other dispositions;




          (e) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all functions of said Commission, or with any
national securities exchange, or distributed by the Borrower to its shareholders generally, as the
case may be; and




46









 








          (f) promptly following any request therefor, such other information regarding the results of
operations, business affairs and financial condition of the Borrower or any Subsidiary as the
Administrative Agent or any Lender may reasonably request.




          In the event that any financial statement delivered pursuant to Section 5.1(a) or (b)
or any Compliance Certificate is shown to be inaccurate (regardless of whether this Agreement or
any Revolving Commitment is in effect when such inaccuracy is discovered), and such inaccuracy, if
corrected, would have led to the application of a higher Applicable Margin for any period (an
“Applicable Period”) than the Applicable Margin applied for such Applicable
Period, then (i) the Borrower shall immediately deliver to the Administrative Agent a
corrected Compliance Certificate for such Applicable Period, (ii) the Applicable Margin for such
Applicable Period shall be determined in accordance with the corrected Compliance Certificate, and
(iii) the Borrower shall immediately pay to the Administrative Agent the accrued additional
interest owing as a result of such increased Applicable Margin for such Applicable Period, which
payment shall be promptly applied by the Administrative Agent to the Obligations. This Section 5.1
shall not limit the rights of the Administrative Agent or the Lenders with respect to Section
2.11(c) and Article VIII hereof.




          Any financial statements delivered pursuant to this Section 5.1 shall include a
segment reporting in accordance with Statement of Financial Accounting Standards 131.




          Section 5.2. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:




          (a) the occurrence of any Default or Event of Default;




          (b) the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or, to the knowledge of the Borrower, affecting the Borrower or
any Subsidiary which, if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;




          (c) the occurrence of any event or any other development by which the Borrower or any of its
Subsidiaries (i) fails to comply with any Environmental Law or to obtain, maintain or comply with
any permit, license or other approval required under any Environmental Law, (ii) becomes subject to
any Environmental Liability, (iii) receives notice of any claim with respect to any Environmental
Liability, or (iv) becomes aware of any basis for any Environmental Liability and in each of the
preceding clauses, which individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect;




          (d) except to the extent that the actions, facts or circumstances described in Schedule
4.10 constitute or may result in an ERISA Event, the occurrence of any ERISA Event that alone,
or together with any other ERISA Events that have occurred, could reasonably be expected to result
in liability of the Borrower and its Subsidiaries in an aggregate amount exceeding $5,000,000;




47









 








          (e) the occurrence of any default or event of default, or the receipt by Borrower or any of
its Subsidiaries of any written notice of an alleged default or event of default, respect of any
Material Indebtedness of the Borrower or any of its Subsidiaries; and




          (f) any other development in the business or affairs of the Borrower or its Subsidiaries that
results in, or could reasonably be expected to result in, a Material Adverse Effect.



Each notice delivered under this Section 5.2 shall be accompanied by a written statement of
a Responsible Officer setting forth the details of the event or development requiring such notice
and any action taken or proposed to be taken with respect thereto.




          Section 5.3. Existence; Conduct of Business. The Borrower will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and maintain
in full force and effect its legal existence and its respective rights, licenses, permits,
privileges, franchises, patents, copyrights, trademarks and trade names material to the conduct of
its business and will continue to engage in the same business as presently conducted or such other
businesses that are reasonably related thereto; provided, that nothing in this Section
5.3 shall prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 7.3.




          Section 5.4. Compliance with Laws, Etc. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and requirements of any Governmental
Authority applicable to its business and properties, including without limitation, all
Environmental Laws, ERISA and OSHA, except where the failure to do so, either individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect.




          Section 5.5. Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay and discharge all of its obligations and liabilities (including without
limitation all tax liabilities and claims that could result in a statutory Lien) before the same
shall become delinquent or in default, except where (a) the validity or amount thereof is being
contested in good faith by appropriate proceedings, and the Borrower or such Subsidiary has set
aside on its books adequate reserves with respect thereto in accordance with GAAP or (b) the
failure to pay or discharge any such obligations or liabilities could not reasonably be expected to
result in a Material Adverse Effect.




          Section 5.6. Books and Records. The Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which full, true and correct entries
shall be made of all dealings and transactions in relation to its business and activities to the
extent necessary to prepare the consolidated financial statements of Borrower in conformity with
GAAP.




          Section 5.7. Visitation, Inspection, Etc. The Borrower will, and will cause each of
its Subsidiaries to, permit any representative of the Administrative Agent or any Lender, so long
as the same does not unreasonably interfere with the business of the Borrower or any Subsidiary, to
visit and inspect its properties, to examine its books and records and to make copies and take
extracts therefrom, and to discuss its affairs, finances and accounts with any of




48









 







its officers and
with its independent certified public accountants, all at such reasonable times and as often as the
Administrative Agent or any Lender may reasonably request after reasonable prior notice to the
Borrower; provided, however, if an Event of Default has occurred and is continuing, no prior notice
shall be required; and provided, further, that each person obtaining any such information
shall hold all such information in accordance with, and subject to, the confidentiality
provisions of Section 10.11.




          Section 5.8. Maintenance of Properties; Insurance. The Borrower will, and will cause
each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and tear excepted, and (b) maintain
with financially sound and reputable insurance companies, insurance with respect to its properties
and business, and the properties and business of its Subsidiaries, against loss or damage of the
kinds customarily insured against by companies in the same or similar businesses operating in the
same or similar locations, provided, however, in lieu of or in addition to any such insurance
described in (a) or (b) above, the Borrower may, and may cause or permit its Subsidiaries to,
adopt, continue or expand self-insurance practices, which may include the creation or continuation
of a “captive” insurance company.




          Section 5.9. Use of Proceeds and Letters of Credit. The Borrower will use the
proceeds of all Loans to refinance existing Indebtedness, finance working capital needs,
acquisitions, capital expenditures and for other general corporate purposes of the Borrower and its
Subsidiaries. No part of the proceeds of any Loan will be used, whether directly or indirectly,
for any purpose that would violate any rule or regulation of the Board of Governors of the Federal
Reserve System, including Regulations T, U or X. All Letters of Credit will be used for general
corporate purposes.




          Section 5.10. Further Assurances.. The Borrower will, and will cause each Subsidiary
to, execute any and all further documents, agreements and instruments, and take all such further
actions which may be required under any applicable law, or which the Administrative Agent or any
Lender may reasonably request, to effectuate the transactions contemplated by the Loan Documents.




ARTICLE VI




FINANCIAL COVENANTS




          The Borrower covenants and agrees that so long as any Lender has a Revolving Commitment
hereunder or any Obligation remains unpaid or outstanding:



          Section 6.1. Leverage Ratio. The Borrower will maintain at all times a Leverage Ratio
of not greater than 3.00 to 1.00; provided, however, that if at any time following the Spin-off,
“Segment Profit” (as calculated and reported by the Borrower for purposes of business segment
reporting in its financial statements) attributable to broadcast television assets of the Borrower
is less than 25% of the total Segment Profit of the Borrower and its Subsidiaries, then the
Leverage Ratio shall thereafter be no greater than 2.50:1.00 at any time.




49









 








          Section 6.2. Interest Coverage Ratio. The Borrower will maintain at all times an
Interest Coverage Ratio of not less than 3.00:1.00.




ARTICLE VII




NEGATIVE COVENANTS




          The Borrower covenants and agrees that so long as any Lender has a Revolving Commitment
hereunder or any Obligation remains outstanding:




          Section 7.1. Indebtedness and Preferred Equity. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness,
except:




          (a) Indebtedness created pursuant to the Loan Documents;




          (b) Indebtedness of the Borrower and its Subsidiaries existing on the date hereof and set
forth on Schedule 7.1 and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof (immediately prior to giving effect
to such extension, renewal or replacement) or shorten the maturity or the weighted average life
thereof;




          (c) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital Lease Obligations,
and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a
Lien on any such assets prior to the acquisition thereof; provided, that such Indebtedness is
incurred prior to or within 90 days after such acquisition or the completion of such construction
or improvements or extensions, renewals, and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof (immediately prior to giving effect to such
extension, renewal or replacement) or shorten the maturity or the weighted average life thereof;
provided further, that the aggregate principal amount of such Indebtedness does not exceed
$50,000,000 at any time outstanding;




          (d) Indebtedness of the Borrower owing to any Subsidiary and of any Subsidiary owing to the
Borrower or any other Subsidiary; provided, that any such Indebtedness that is owed to a
Subsidiary shall be subject to Section 7.4;




          (e) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of
Indebtedness of the Borrower or any other Subsidiary; provided, that Guarantees by the
Borrower of Indebtedness of any Subsidiary shall be subject to Section 7.4;




          (f) Indebtedness of any Person which becomes a Subsidiary after the date of this Agreement;
provided, that (i) such Indebtedness exists at the time that such Person becomes a
Subsidiary and is not created in contemplation of or in connection with such Person becoming a
Subsidiary and (ii) the aggregate principal amount of such Indebtedness permitted hereunder
shall not exceed $50,000,000 outstanding at any time;




50









 








          (g) Permitted Subordinated Debt;




          (h) Indebtedness in respect of Hedging Obligations permitted by Section 7.10; and




          (i) other unsecured Indebtedness of the Borrower or its Subsidiaries in an aggregate principal
amount not to exceed $50,000,000 at any time outstanding; provided, that the aggregate
principal amount of Indebtedness of all Subsidiaries permitted by this clause (i) shall not exceed
$25,000,000.




Borrower will not, and will not permit any Subsidiary to, issue any preferred stock or other
preferred equity interests that (i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (ii) is or may become redeemable or repurchaseable by Borrower or such
Subsidiary at the option of the holder thereof, in whole or in part or (iii) is convertible or
exchangeable at the option of the holder thereof for Indebtedness or preferred stock or any other
preferred equity interests described in this paragraph, on or prior to, in the case of clause (i),
(ii) or (iii), the first anniversary of the Revolving Commitment Termination Date.




          Section 7.2. Negative Pledge. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien on any of its assets or property
now owned or hereafter acquired or, except:




          (a) Permitted Encumbrances;




          (b) any Liens on any property or asset of the Borrower or any Subsidiary existing on the
Closing Date set forth on Schedule 7.2; provided, that such Lien shall not apply to
any other property or asset of the Borrower or any Subsidiary;




          (c) purchase money Liens upon or in any fixed or capital assets to secure the purchase price
or the cost of construction or improvement of such fixed or capital assets or to secure
Indebtedness incurred solely for the purpose of financing the acquisition, construction or
improvement of such fixed or capital assets (including Liens securing any Capital Lease
Obligations); provided, that (i) such Lien secures Indebtedness permitted by Section
7.1(c), (ii) such Lien attaches to such asset concurrently or within 90 days after the
acquisition, improvement or completion of the construction thereof; (iii) such Lien does not extend
to any other asset; and (iv) the Indebtedness secured thereby does not exceed the cost of
acquiring, constructing or improving such fixed or capital assets;




          (d) any Lien (i) existing on any asset of any Person at the time such Person becomes a
Subsidiary of the Borrower, (ii) existing on any asset of any Person at the time such Person is
merged with or into the Borrower or any Subsidiary of the Borrower or (iii) existing on any asset
prior to the acquisition thereof by the Borrower or any Subsidiary of the Borrower;
provided, that any such Lien was not created in the contemplation of any of the foregoing
and any
such Lien secures only those obligations which it secures on the date that such Person becomes
a Subsidiary or the date of such merger or the date of such acquisition; and




          (e) extensions, renewals, or replacements of any Lien referred to in paragraphs (a) through
(d) of this Section 7.2; provided, that the principal amount of the




51









 







Indebtedness
secured thereby is not increased and that any such extension, renewal or replacement is limited to
the assets originally encumbered thereby.




          Section 7.3. Fundamental Changes.




          (a) The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate
into any other Person, or permit any other Person to merge into or consolidate with it, or sell,
lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all
or substantially all of its assets (in each case, whether now owned or hereafter acquired) or all
or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or
hereafter acquired) or liquidate or dissolve; provided, that if at the time thereof and
immediately after giving effect thereto on a pro forma basis, no Default or Event of Default shall
have occurred and be continuing (i) the Borrower or any Subsidiary may merge with a Person if the
Borrower (or such Subsidiary if the Borrower is not a party to such merger) is the surviving
Person, (ii) any Subsidiary may merge into another Subsidiary, (iii) any Subsidiary may sell,
transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower and
(iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and will not materially
adversely affect the Borrower’s ability to perform its obligations under this Agreement;
provided, that any such merger involving a Person that is not a wholly-owned Subsidiary
immediately prior to such merger shall not be permitted unless also permitted by
Section 7.4.




          (b) The Borrower will not, and will not permit any of its Subsidiaries to, engage in any
business other than businesses of the type conducted by the Borrower and its Subsidiaries on the
date hereof and businesses reasonably related thereto.




          Section 7.4. Investments, Loans, Etc.. The Borrower will not, and will not permit any
of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly-owned Subsidiary prior to such merger), any common stock, evidence of
indebtedness or other securities (including any option, warrant, or other right to acquire any of
the foregoing) of, make any loans or advances to, Guarantee any obligations of, or make any
investment or any other interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person that constitute a business
unit, or create or form any Subsidiary (all of the foregoing being collectively called
“Investments”), provided, that: (a) the Borrower and its Subsidiaries may make and
hold Permitted Investments, and (b) the Borrower and its Subsidiaries may make other Investments so
long as each of the following conditions are satisfied:





(i) at the time of making, and after giving effect to, such Investment, no Default or
Event of Default shall have occurred and be continuing;




(ii) after giving effect to such Investment, the Borrower will, on a Pro Forma Basis,
be in compliance with the financial covenants set forth in Article VI hereof; and




(iii) if and to the extent such Investment relates to the purchase or acquisition of
all or substantially all of the capital stock of, or all or substantially all of the



52









 







assets of, another Person: (A) such other Person shall be in substantially similar
lines of business as the Borrower and its Subsidiaries or businesses reasonably
related thereto, and (B) the board of directors (or similar governing body) of such
Person shall have approved such acquisition.



          Section 7.5. Restricted Payments. The Borrower will not, and will not permit its
Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any dividend on
any class of its stock (other than the Spin-off), or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase, redemption, retirement, or other
acquisition of, any shares of capital stock of the Borrower or any options, warrants, or other
rights to purchase such capital stock, whether now or hereafter outstanding (each, a
“Restricted Payment”); provided, that the Borrower and its Subsidiaries may make
Restricted Payments so long as each of the following conditions are satisfied:




          (a) at the time of making, and after giving effect to, such Restricted Payment, no Default or
Event of Default shall have occurred and be continuing; and




          (b) after giving effect to such Restricted Payment, the Borrower will, on a Pro Forma Basis,
be in compliance with the financial covenants set forth in Article VI hereof;




          and provided, further that the Borrower may in any event permit its Subsidiaries to declare and pay
cash and other dividends (i) to another Subsidiary, or (ii) to the Borrower.




          Section 7.6. Sale of Assets. The Borrower will not, and will not permit any of its
Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of, any of its assets,
business or property, whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary’s capital stock (excluding the Spin-off) to any Person
other than the Borrower or any wholly-owned Subsidiary of the Borrower (or to qualify directors if
required by applicable law), except:




          (a) the sale or other disposition for fair market value of obsolete or worn out property or
other property not necessary for operations disposed of in the ordinary course of business;




          (b) the sale of inventory and Permitted Investments in the ordinary course of business;




          (c) so long as no Default or Event of Default then exists or would result therefrom, any sale
or other disposition of capital or fixed assets in which the Borrower or its Subsidiaries receive
in exchange for such sale, either at the time of such sale or within 360 days
thereafter, replacement assets of a like kind as those sold or disposed of, which replacement
assets are to be used in the business of the Borrower and its Subsidiaries; and




          (d) so long as no Default or Event of Default then exists or would result therefrom, the sale
or other disposition of assets in an aggregate amount during the term of this Agreement not to
exceed, when taken together with all other such asset sales or dispositions (other than as
described in clauses (a), (b) and (c) immediately above and excluding the Spin-off) after the
Closing Date, 20% of the Borrower’s total assets (determined on a consolidated basis) at the




53









 







time
of such sale, provided, that after giving effect to such sale or other disposition of assets, the
Borrower will, on a Pro Forma Basis, be in compliance with the financial covenants set forth in
Article VI hereof; and provided, further, that, to the extent the Borrower or any of its
Subsidiaries receive cash proceeds or Indebtedness in connection with any asset sale described in
clause (c) immediately above, the Borrower will be deemed to have sold assets under this clause (d)
in an amount equal to the cash proceeds so received and/or the principal amount (or equivalent
thereof) of Indebtedness owing by the purchaser of such assets.




          Section 7.7. Transactions with Affiliates. The Borrower will not, and will not permit
any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of business at prices
and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an arm’s-length basis from unrelated third parties and (b) any Restricted Payment
permitted by Section 7.5; provided, however, this Section 7.7 shall not be deemed
to prohibit any of the transactions or relationships with Affiliates contemplated by the agreements
listed on Schedule 7.7 attached hereto.




          Section 7.8. Restrictive Agreements. The Borrower will not, and will not permit any
Subsidiary to, directly or indirectly, enter into, incur or permit to exist any agreement that
prohibits, restricts or imposes any condition upon (a) the ability of the Borrower or any
Subsidiary to create, incur or permit any Lien upon any of its assets or properties, whether now
owned or hereafter acquired, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to its common stock, to make or repay loans or advances to the Borrower
or any other Subsidiary, to Guarantee Indebtedness of the Borrower or any other Subsidiary or to
transfer any of its property or assets to the Borrower or any Subsidiary of the Borrower;
provided, that (i) the foregoing shall not apply to prohibitions, restrictions and
conditions imposed by law or by this Agreement or any other Loan Document, (ii) the foregoing shall
not apply to customary prohibitions, restrictions and conditions contained in agreements relating
to the sale of a Subsidiary pending such sale, provided such prohibitions, restrictions and
conditions apply only to the Subsidiary that is sold and such sale is permitted hereunder, (iii)
clause (a) shall not apply to prohibitions, restrictions and conditions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement if such prohibitions, restrictions and
conditions apply only to the property or assets securing such Indebtedness, (iv) clause (a) shall
not apply to restrictions and conditions imposed by any agreement relating to unsecured
Indebtedness permitted by Section 7.1(i) or Section 7.1(f) of this Agreement to the
extent that such restrictions and conditions require an equal and ratable Lien in the same
collateral be granted by the applicable issuer of such Indebtedness in
favor of the holders of such Indebtedness in the event that the Borrower or its Subsidiaries,
as applicable, grant Liens in favor of the Administrative Agent and the Lenders to secure the
Obligations at any time after the date hereof, and (v) clause (a) shall not apply to customary
provisions in leases and other contracts restricting the assignment thereof.




          Section 7.9. Sale and Leaseback Transactions. The Borrower will not, and will not
permit any of the Subsidiaries to, enter into any arrangement, directly or indirectly, whereby it
shall sell or transfer any property, real or personal, used or useful in its business, whether now
owned or hereinafter acquired, and thereafter rent or lease such property or other




54









 







property that it
intends to use for substantially the same purpose or purposes as the property sold or transferred
(each, a “Sale/Leaseback Transaction”), unless at the time such Sale/Leaseback Transaction
is entered into (a) no Default or Event of Default has occurred and is continuing, (b) after giving
effect to such Sale/Leaseback Transaction, the Borrower will, on a Pro Forma Basis, be in
compliance with the financial covenants set forth in Article VI and (c) the aggregate amount of
assets sold or otherwise disposed of in connection with such Sale/Leaseback Transactions is
permitted pursuant to Section 7.6(c).




          Section 7.10. Hedging Transactions. The Borrower will not, and will not permit any of
the Subsidiaries to, enter into any Hedging Transaction, other than Hedging Transactions entered
into in the ordinary course of business to hedge or mitigate risks to which the Borrower or any
Subsidiary is exposed in the conduct of its business or the management of its liabilities. Solely
for the avoidance of doubt, the Borrower acknowledges that a Hedging Transaction entered into for
speculative purposes or of a speculative nature (which shall be deemed to include any Hedging
Transaction under which the Borrower or any of the Subsidiaries is or may become obliged to make
any payment (i) in connection with the purchase by any third party of any common stock or any
Indebtedness or (ii) as a result of changes in the market value of any common stock or any
Indebtedness) is not a Hedging Transaction entered into in the ordinary course of business to hedge
or mitigate risks.




          Section 7.11. Permitted Subordinated Indebtedness.




          (a) The Borrower will not, and will not permit any of its Subsidiaries to (i) prepay, redeem,
repurchase or otherwise acquire for value any Permitted Subordinated Debt, or (ii) make any
principal, interest or other payments on any Permitted Subordinated Debt that is not expressly
permitted by the subordination provisions of the Subordinated Debt Documents.




          (b) The Borrower will not, and will not permit any of its Subsidiaries to, agree to or permit
any amendment, modification or waiver of any provision of any Subordinated Debt Document if the
effect of such amendment, modification or waiver is to (i) increase the interest rate on such
Permitted Subordinated Debt or change (to earlier dates) the dates upon which principal and
interest are due thereon; (ii) alter the redemption, prepayment or subordination provisions
thereof; (iii) alter the covenants and events of default in a manner that would make such
provisions more onerous or restrictive to the Borrower or any such Subsidiary; or (iv) otherwise
increase the obligations of the Borrower or any Subsidiary in respect of such Permitted
Subordinated Debt or confer additional rights upon the holders thereof which individually or
in the aggregate would be adverse to the Borrower or any of its Subsidiaries or to the Agent or the
Lenders.




          Section 7.12. Accounting Changes. The Borrower will not, and will not permit any of
its Subsidiaries to, make any significant change in accounting treatment or reporting practices,
except as required by GAAP, or change the fiscal year of the Borrower or of any of its
Subsidiaries, except to change the fiscal year of a Subsidiary to conform its fiscal year to that
of the Borrower.




55









 








ARTICLE VIII




EVENTS OF DEFAULT




          Section 8.1. Events of Default. If any of the following events (each an “Event of
Default”) shall occur:




          (a) the Borrower shall fail to pay any principal of any Loan or of any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment or otherwise; or




          (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount payable under clause (a) of this Section 8.1) payable under this
Agreement or any other Loan Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of five (5) Business Days; or




          (c) any representation or warranty made or deemed made by or on behalf of the Borrower in or
in connection with this Agreement or any other Loan Document (including the Schedules attached
thereto) and any amendments or modifications hereof or waivers hereunder, or in any certificate,
report, financial statement or other document submitted to the Administrative Agent or the Lenders
by the Borrower or any representative of the Borrower pursuant to or in connection with this
Agreement or any other Loan Document shall prove to be incorrect in any material respect when made
or deemed made or submitted; or




          (d) the Borrower shall fail to observe or perform any covenant or agreement contained in
Sections 5.1, 5.2, or 5.3 (with respect to the Borrower’s existence) or
Articles VI or VII; or




          (e) the Borrower shall fail to observe or perform any covenant or agreement contained in this
Agreement (other than those referred to in clauses (a), (b) and (d) above) or any other Loan
Document, and such failure shall remain unremedied for 30 days after the earlier of (i) any
Responsible Officer of the Borrower becomes aware of such failure, or (ii) notice thereof shall
have been given to the Borrower by the Administrative Agent or any Lender; or




          (f) [intentionally omitted]; or




          (g) the Borrower or any Subsidiary (whether as primary obligor or as guarantor or other
surety) shall fail to pay any principal of, or premium or interest on, any Material Indebtedness
that is outstanding, when and as the same shall become due and payable (whether at scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or instrument evidencing or
governing such Indebtedness; or any other event shall occur or condition shall exist under any
agreement or instrument relating to such Indebtedness and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the effect of such event or condition
is to accelerate, or permit the acceleration of, the maturity of such Indebtedness; or any such
Indebtedness shall be declared to be due and payable, or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption),




56









 







purchased or defeased, or any
offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in
each case prior to the stated maturity thereof; or




          (h) the Borrower or any Subsidiary shall (i) commence a voluntary case or other proceeding or
file any petition seeking liquidation, reorganization or other relief under any federal, state or
foreign bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the
appointment of a custodian, trustee, receiver, liquidator or other similar official of it or any
substantial part of its property, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in clause (i) of this
Section 8.1, (iii) apply for or consent to the appointment of a custodian, trustee,
receiver, liquidator or other similar official for the Borrower or any such Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general assignment for the benefit of
creditors, or (vi) take any action for the purpose of effecting any of the foregoing; or




          (i) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or any substantial part of its assets, under any federal, state or foreign
bankruptcy, insolvency or other similar law now or hereafter in effect or (ii) the appointment of a
custodian, trustee, receiver, liquidator or other similar official for the Borrower or any
Subsidiary or for a substantial part of its assets, and in any such case, such proceeding or
petition shall remain undismissed for a period of 60 days or an order or decree approving or
ordering any of the foregoing shall be entered; or




          (j) the Borrower or any Subsidiary shall become unable to pay, shall admit in writing its
inability to pay, or shall fail to pay, its debts as they become due; or




          (k) except to the extent that the actions, facts or circumstances described in Schedule
4.10 constitute or may result in an ERISA Event, an ERISA Event shall have occurred that, when
taken together with other ERISA Events that have occurred, could reasonably be expected to result
in liability to the Borrower and the Subsidiaries in an aggregate amount exceeding $7,500,000; or




          (l) any judgment or order for the payment of money in excess of $7,500,000 in the aggregate
shall be rendered against the Borrower or any Subsidiary, and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be a period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or




          (m) any non-monetary judgment or order shall be rendered against the Borrower or any
Subsidiary that could reasonably be expected to have a Material Adverse Effect, and there shall be
a period of 30 consecutive days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or




          (n) a Change in Control shall occur or exist; or




          (o) (i) the Borrower shall be enjoined, restrained or in any way prevented by the order of any
Governmental Authority from conducting any material part of the business of the




57









 







Borrower and such
order shall continue in effect for more than thirty (30) days or (ii) any strike, lockout, labor
dispute, embargo, condemnation, act of God or public enemy or terrorism, or other casualty, which
in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial
curtailment of revenue producing activities of the Borrower if such event or circumstance is not
covered by business interruption insurance and would have a Material Adverse Effect; or




          (p) the loss, suspension or revocation of, or failure to renew, any license, permit or
authorization now held or hereafter acquired by the Borrower, or any other action shall be taken by
any Governmental Authority in response to any alleged failure by the Borrower to be in compliance
with applicable law if such loss, suspension, revocation or failure to renew or other action,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect;



then, and in every such event (other than an event with respect to the Borrower described in clause
(g) or (h) of this Section 8.1) and at any time thereafter during the continuance of such
event, the Administrative Agent may, and upon the written request of the Required Lenders shall, by
notice to the Borrower, take any or all of the following actions, at the same or different times:
(i) terminate the Revolving Commitments, whereupon the Revolving Commitment of each Lender shall
terminate immediately, (ii) declare the principal of and any accrued interest on the Loans, and all
other Obligations owing hereunder, to be, whereupon the same shall become, due and payable
immediately, without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower, (iii) exercise all remedies contained in any other Loan Document,
and (iv) exercise any other remedies available at law or in equity; and that, if an Event of
Default specified in either clause (g) or (h) shall occur, the Revolving Commitments shall
automatically terminate and the principal of the Loans then outstanding, together with accrued
interest thereon, and all fees, and all other Obligations shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower.




ARTICLE IX




THE ADMINISTRATIVE AGENT




          Section 9.1. Appointment of Administrative Agent.




          (a) Each Lender irrevocably appoints SunTrust Bank as the Administrative Agent and authorizes
it to take such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent under this Agreement and the other Loan Documents, together with all such
actions and powers that are reasonably incidental thereto. The Administrative Agent may perform
any of its duties hereunder or under the other Loan Documents by or through any one or more
sub-agents or attorneys-in-fact appointed by the Administrative Agent. The Administrative Agent
and any such sub-agent or attorney-in-fact may perform any and all of its duties and exercise its
rights and powers through their respective Related Parties. The exculpatory provisions set forth
in this Article shall apply to any such sub-agent or attorney-in-fact and the Related Parties of
the Administrative Agent, any such sub-agent and any such




58









 







attorney-in-fact and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent.




          (b) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit
issued by it and the documents associated therewith until such time and except for so long as the
Administrative Agent may agree at the request of the Required Lenders to act for the Issuing Bank
with respect thereto; provided, that the Issuing Bank shall have all the benefits and immunities
(i) provided to the Administrative Agent in this Article with respect to any acts taken or
omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or
proposed to be issued by it and the application and agreements for letters of credit pertaining to
the Letters of Credit as fully as if the term “Administrative Agent” as used in this Article
included the Issuing Bank with respect to such acts or omissions and (ii) as additionally provided
in this Agreement with respect to the Issuing Bank.




          Section 9.2. Nature of Duties of Administrative Agent. The Administrative Agent shall
not have any duties or obligations except those expressly set forth in this Agreement and the other
Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent
shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or
an Event of Default has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers, except those
discretionary rights and powers expressly contemplated by the Loan Documents that the
Administrative Agent is required to exercise in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 10.2), and (c) except as expressly set forth in the Loan Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the Administrative Agent or any of its Lender Affiliates in any
capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it, its
sub-agents or attorneys-in-fact with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the circumstances as provided
in Section 10.2) or in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents or
attorneys-in-fact selected by it with reasonable care. The Administrative Agent shall not be
deemed to have knowledge of any Default or Event of Default unless and until written notice thereof
(which notice shall include an express reference to such event being a “Default” or “Event of
Default” hereunder) is given to the Administrative Agent by the Borrower or any Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of any of the covenants,
agreements, or other terms and conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in Article III
or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent. The Administrative Agent may consult with legal counsel
concerning all matters pertaining to such duties.




59









 








          Section 9.3. Lack of Reliance on the Administrative Agent. Each of the Lenders, the
Swingline Lender and the Issuing Bank acknowledges that it has, independently and without reliance
upon the Administrative Agent, the Issuing Bank or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each of the Lenders, the Swingline Lender and the Issuing Bank also acknowledges
that it will, independently and without reliance upon the Administrative Agent, the Issuing Bank or
any other Lender and based on such documents and information as it has deemed appropriate, continue
to make its own decisions in taking or not taking of any action under or based on this Agreement,
any related agreement or any document furnished hereunder or thereunder.




          Section 9.4. Certain Rights of the Administrative Agent. If the Administrative Agent
shall request instructions from the Required Lenders with respect to any action or actions
(including the failure to act) in connection with this Agreement, the Administrative Agent shall be
entitled to refrain from such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur liability to any
Person by reason of so refraining. Without limiting the foregoing, no Lender shall have any right
of action whatsoever against the Administrative Agent as a result of the Administrative Agent
acting or refraining from acting hereunder in accordance with the instructions of the Required
Lenders where required by the terms of this Agreement.




          Section 9.5. Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing (including any electronic
message,
posting or other distribution) believed by it to be genuine and to have been signed, sent or
made by the proper Person. The Administrative Agent may also rely upon any statement made to it
orally or by telephone and believed by it to be made by the proper Person and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal counsel,
independent public accountants and other experts selected by it and shall not be liable for any
action taken or not taken by it in accordance with the advice of such counsel, accountants or
experts.




          Section 9.6. The Administrative Agent in its Individual Capacity. The bank serving as
the Administrative Agent shall have the same rights and powers under this Agreement and any other
Loan Document in its capacity as a Lender as any other Lender and may exercise or refrain from
exercising the same as though it were not the Administrative Agent; and the terms “Lenders”,
“Required Lenders”, “holders of Notes”, or any similar terms shall, unless the context clearly
otherwise indicates, include the Administrative Agent in its individual capacity. The bank acting
as the Administrative Agent and its Lender Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary or Affiliate of the
Borrower as if it were not the Administrative Agent hereunder.




          Section 9.7. Successor Administrative Agent.




          (a) The Administrative Agent may resign at any time by giving notice thereof to the Lenders
and the Borrower. Upon any such resignation, the Required Lenders shall have the right to appoint
a successor Administrative Agent, subject to the approval by the Borrower




60









 







provided that no Default
or Event of Default shall exist at such time. If no successor Administrative Agent shall have been
so appointed, and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent, which shall
be a commercial bank organized under the laws of the United States of America or any state thereof
or a bank which maintains an office in the United States, having a combined capital and surplus of
at least $500,000,000.




          (b) Upon the acceptance of its appointment as the Administrative Agent hereunder by a
successor, such successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and obligations under this
Agreement and the other Loan Documents. If within 45 days after written notice is given of the
retiring Administrative Agent’s resignation under this Section 9.7 no successor
Administrative Agent shall have been appointed and shall have accepted such appointment, then on
such 45th day (i) the retiring Administrative Agent’s resignation shall become
effective, (ii) the retiring Administrative Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (iii) the Required Lenders shall thereafter perform all
duties of the retiring Administrative Agent under the Loan Documents until such time as the
Required Lenders appoint a successor Administrative Agent as provided above. After any retiring
Administrative Agent’s resignation hereunder, the provisions of this Article shall continue in
effect for the benefit of such retiring Administrative Agent and its representatives and agents in
respect of any actions taken or not taken by any of them while it was serving as the Administrative
Agent.




          Section 9.8. Authorization to Execute other Loan Documents. Each Lender hereby
authorizes the Administrative Agent to execute on behalf of all Lenders all Loan Documents other
than this Agreement.




          Section 9.9. Syndication Agent/Documentation Agent. Each Lender hereby designates (i)
Fifth Third Bank, an Ohio Banking Corporation, as Syndication Agent and (ii) U.S. Bank National
Association, as Documentation Agent, and agrees that the Syndication Agent and the Documentation
Agent shall have no duties or obligations under any Loan Documents to any Lender or the Borrower.




ARTICLE X




MISCELLANEOUS




          Section 10.1. Notices.




          (a) Except in the case of notices and other communications expressly permitted to be given by
telephone, all notices and other communications to any party herein to be effective shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:




	 	 	 	 	 
	 

	 	To the Borrower:
	 	The E.W. Scripps Company
	 

	 	 	 	312 Walnut Street






61









 






	 	 	 	 	 
	 

	 	 	 	2800 Scripps Center
	 

	 	 	 	Cincinnati, Ohio 45202
	 

	 	 	 	Attention: Treasurer
	 

	 	 	 	Telecopy Number: (513) 977-3729
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Baker & Hostetler LLP
	 

	 	 	 	3200 National City Center
	 

	 	 	 	1900 East Ninth Street
	 

	 	 	 	Cleveland, OH 44114-3485
	 

	 	 	 	Attention: Edward S. Ginsburg
	 

	 	 	 	Telecopy Number: (216) 696-0740
	 
	 	 	 	 
	 

	 	To the Administrative Agent	 	 
	 

	 	or Swingline Lender:
	 	SunTrust Bank
	 

	 	 	 	919 East Main Street
	 

	 	 	 	22nd Floor
	 

	 	 	 	Richmond, VA 23219
	 

	 	 	 	Attention: Jeff Hauser
	 

	 	 	 	Telecopy Number: (804) 782-7548
	 
	 	 	 	 
	 

	 	With a copy to:
	 	SunTrust Bank
	 

	 	 	 	Agency Services
	 

	 	 	 	303 Peachtree Street, N. E./ 25th Floor
	 

	 	 	 	Atlanta, Georgia 30308
	 

	 	 	 	Attention: Doris Folsom
	 

	 	 	 	Telecopy Number: (404) 724-3879
	 
	 	 	 	 
	 

	 	To the Issuing Bank:
	 	SunTrust Bank
	 

	 	 	 	25 Park Place, N. E./Mail Code 3706
	 

	 	 	 	Atlanta, Georgia 30303
	 

	 	 	 	Attention: John Conley
	 

	 	 	 	Telecopy Number: (404) 588-8129
	 
	 	 	 	 
	 

	 	To any other Lender:
	 	the address set forth in the Administrative
	 

	 	 	 	Questionnaire or the Assignment and Acceptance
	 

	 	 	 	Agreement executed by such Lender





Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such notices and
other communications shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day) delivery, or transmitted in legible
form by facsimile machine, respectively, or if mailed, upon the third Business Day after
the date deposited into the mail or if delivered, upon delivery; provided, that notices
delivered to the Administrative Agent, the Issuing Bank or the Swingline Bank shall not
be effective until actually received by such Person at its address specified in this
Section 10.1.




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          (b) Any agreement of the Administrative Agent and the Lenders herein to receive certain
notices by telephone or facsimile is solely for the convenience and at the request of the Borrower.
The Administrative Agent and the Lenders shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the Borrower to give such notice and the Administrative
Agent and Lenders shall not have any liability to the Borrower or other Person on account of any
action taken or not taken by the Administrative Agent or the Lenders in reliance upon such
telephonic or facsimile notice. The obligation of the Borrower to repay the Loans and all other
Obligations hereunder shall not be affected in any way or to any extent by any failure of the
Administrative Agent and the Lenders to receive written confirmation of any telephonic or facsimile
notice or the receipt by the Administrative Agent and the Lenders of a confirmation which is at
variance with the terms understood by the Administrative Agent and the Lenders to be contained in
any such telephonic or facsimile notice.




          Section 10.2. Waiver; Amendments.




          (a) No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder or any other Loan Document, and no course of dealing
between the Borrower and the Administrative Agent or any Lender, shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power or any
abandonment or discontinuance of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any rights or remedies
provided by law. No waiver of any provision of this Agreement or any other Loan Document or
consent to any departure by the Borrower therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) of this Section 10.2, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which given. Without
limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of
Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether
the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default or Event of Default at the time.




          (b) No amendment or waiver of any provision of this Agreement or the other Loan Documents, nor
consent to any departure by the Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Borrower and the Required Lenders or the Borrower and the
Administrative Agent with the consent of the Required Lenders and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for which given;
provided, that no amendment or waiver shall: (i) increase the Revolving Commitment of any
Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the date fixed for any
payment of any principal of, or interest on, any Loan or LC Disbursement or interest thereon or any
fees hereunder or reduce the amount of, waive or excuse any such payment, or postpone the scheduled
date for the termination or reduction of any Revolving Commitment, without the written consent of
each Lender affected thereby, (iv) change Section 2.19(b) or (c) in a manner that
would alter the pro rata sharing of payments required thereby,




63









 







without the written consent of each
Lender, (v) change any of the provisions of this Section 10.2 or the definition of
“Required Lenders” or any other provision hereof specifying the number or percentage of Lenders
which are required to waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the written consent of each Lender; or (vi) release any
guarantor or limit the liability of any such guarantor under any guaranty agreement, without the
written consent of each Lender; provided further, that no such agreement shall amend,
modify or otherwise affect the rights, duties or obligations of the Administrative Agent, the
Swingline Bank or the Issuing Bank without the prior written consent of such Person.
Notwithstanding anything contained herein to the contrary, this Agreement may be amended and
restated without the consent of any Lender (but with the consent of the Borrower and the
Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall
no longer be a party to this Agreement (as so amended and restated), the Revolving Commitments of
such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of
Sections 2.16, 2.17, 2.18 and 10.3), such Lender shall have no
other commitment or other obligation hereunder and shall have been paid in full all principal,
interest and other amounts owing to it or accrued for its account under this Agreement.
Notwithstanding anything herein or otherwise to the contrary, any Event of Default occurring
hereunder shall continue to exist (and shall be deemed to be continuing) until such time as such
Event of Default is waived in writing in accordance with the terms of this Section notwithstanding
(i) any attempted cure or other action taken by the Borrower or any other Person subsequent to the
occurrence of such
Event of Default or (ii) any action taken or omitted to be taken by the Administrative Agent
or any Lender prior to or subsequent to the occurrence of such Event of Default (other than the
granting of a waiver in writing in accordance with the terms of this Section).




          Section 10.3. Expenses; Indemnification.




          (a) The Borrower shall pay (i) all reasonable, out-of-pocket costs and expenses of the
Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent and its Affiliates, in connection with the syndication of
the credit facilities provided for herein, the preparation and administration of the Loan Documents
and any amendments, modifications or waivers thereof (whether or not the transactions contemplated
in this Agreement or any other Loan Document shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket costs and expenses (including, without limitation, the reasonable fees, charges and
disbursements of outside counsel and the allocated cost of inside counsel) incurred by the
Administrative Agent, the Issuing Bank or any Lender in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights under this
Section 10.3, or in connection with the Loans made or any Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.




          (b) The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each
Lender and the Issuing Bank, and each Related Party of any of the foregoing Persons (each such
Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses (including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee), and shall





64









 







indemnify and hold harmless
each Indemnitee from all reasonable fees and time charges and disbursements for attorneys who may
be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by the Borrower arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit
if the documents presented in connection with such demand do not strictly comply with the terms of
such Letter of Credit), (iii) the use by any Person of any information or materials obtained by or
through SyndTrak or other internet web sites, (iv) any actual or alleged presence or Release of
Hazardous Materials on or from any property owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related to the Borrower or any of its Subsidiaries, or
(v) any actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third party or
by the Borrower, and regardless of whether any Indemnitee is a party thereto, provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have
resulted from (x) the gross negligence or willful misconduct of such Indemnitee or (y) in the
case of the Administrative Agent or any Lender, any unexcused breach by the Administrative Agent or
such Lender of any of its obligations under this Agreement.




          (c) The Borrower shall pay, and hold the Administrative Agent and each of the Lenders harmless
from and against, any and all present and future stamp, documentary, and other similar taxes with
respect to this Agreement and any other Loan Documents, any collateral described therein, or any
payments due thereunder, and save the Administrative Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting from any delay or omission to pay such
taxes.




          (d) To the extent that the Borrower fails to pay any amount required to be paid to the
Administrative Agent, the Issuing Bank or the Swingline Lender under clauses (a), (b) or (c)
hereof, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lender’s Pro Rata Share (determined as of the time that
the unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided,
that the unreimbursed expense or indemnified payment, claim, damage, liability or related expense,
as the case may be, was incurred by or asserted against the Administrative Agent, the Issuing Bank
or the Swingline Lender in its capacity as such.




          (e) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to actual or direct damages) arising out of, in
connection with or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the transactions contemplated therein, any Loan or any Letter of Credit or the use of
proceeds thereof.




65









 








          (f) All amounts due under this Section 10.3 shall be payable promptly after written
demand therefor.




          Section 10.4. Successors and Assigns.




          (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of paragraph (b) of this Section, (ii) by way of participation in
accordance with the provisions of paragraph (d) of this Section or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of paragraph (f) of this Section (and
any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in paragraph (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.




          (b) Any Lender may at any time assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its Revolving Commitment and
the Loans at the time owing to it); provided that any such assignment shall be subject to
the following conditions:




          (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Revolving Commitment and the Loans at the time owing to it or in
the case of an assignment to a Lender, a Lender Affiliate of a Lender or an Approved
Fund, no minimum amount need be assigned; and




     (B) in any case not described in paragraph (b)(i)(A) of this Section, the
aggregate amount of the Revolving Commitment (which for this purpose includes Loans
and Revolving Credit Exposure outstanding thereunder) or, if the applicable
Revolving Commitment is not then in effect, the principal outstanding balance of the
Loans and Revolving Credit Exposure of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Acceptance, as of the Trade Date) shall not be less
than $1,000,000, unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed).




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations



66









 







under this Agreement with respect to the Loans, Revolving Credit Exposure or the Revolving
Commitment assigned.




     (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by paragraph (b)(i)(B) of this Section and, in addition:




     (A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (x) an Event of Default has occurred and is
continuing at the time of such assignment or (y) such assignment is to a Lender, a
Lender Affiliate of a Lender or an Approved Fund;




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments to a Person that
is not a Lender with a Revolving Commitment; and




     (C) the consent of the Issuing Bank (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment that increases the
obligation of the assignee to participate in exposure under one or more Letters of
Credit (whether or not then outstanding), and the consent of the Swingline Lender
(such consent not to be unreasonably withheld or delayed) shall be required for
any assignment in respect of the Revolving Commitments.




     (iv) Assignment and Acceptance. The parties to each assignment shall deliver
to the Administrative Agent (A) a duly executed Assignment and Acceptance, (B) a processing
and recordation fee of $3,500, (C) an Administrative Questionnaire unless the assignee is
already a Lender and (D) the documents required under Section 10.4 if such assignee
is a Foreign Lender.




     (v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c)
of this Section 10.4, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 2.16, 2.17, 2.18 and
10.3 with respect to facts and circumstances occurring prior to the effective date of such
assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale
by such


67









 






Lender of a participation in such rights and obligations in accordance with paragraph (d)
of this Section 10.4. If the consent of the Borrower to an assignment is required
hereunder (including a consent to an assignment which does not meet the minimum assignment
thresholds specified above), the Borrower shall be deemed to have given its consent five Business
Days after the date notice thereof has actually been delivered by the assigning Lender (through the
Administrative Agent) to the Borrower, unless such consent is expressly refused by the Borrower
prior to such fifth Business Day.




          (c) The Administrative Agent, acting solely for this purpose as an agent of the Borrower,
shall maintain at one of its offices in Atlanta, Georgia a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Revolving Commitments of, and principal amount of the Loans and Revolving Credit Exposure owing
to, each Lender pursuant to the terms hereof from time to time (the “Register”). The
entries in the Register shall be conclusive, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.




          (d) Any Lender may at any time, without the consent of, or notice to, the Borrower, the
Administrative Agent, the Swingline Bank or the Issuing Bank sell participations to any Person
(other than a natural person, the Borrower or any of the Borrower’s Affiliates or Subsidiaries)
(each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations
under this Agreement (including all or a portion of its Revolving Commitment and/or the Loans owing
to it); provided that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders,
Issuing Bank and Swingline Lender shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement.




          (e) Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver with respect to the following to the
extent affecting such Participant: (i) increase the Revolving Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the date fixed for any payment of any
principal of, or interest on, any Loan or LC Disbursement or interest thereon or any fees hereunder
or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date for the
termination or reduction of any Revolving Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.19 (b) or (c) in a manner that would alter
the pro rata sharing of payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section 10.4 or the definition of “Required Lenders”
or any other provision hereof specifying the number or percentage of Lenders which are required to
waive, amend or modify any rights hereunder or make any determination or grant any




68









 







consent
hereunder, without the consent of each Lender; (vi) release any guarantor or limit the liability of
any such guarantor under any guaranty agreement without the written consent of each Lender except
to the extent such release is expressly provided under the terms of the Guaranty Agreement; or
(vii) release all or substantially all collateral (if any) securing any of the Obligations.
Subject to paragraph (e) of this Section 10.4, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.16, 2.17, and 2.18 to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section 10.4. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 10.7 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.16 as though it were a Lender.




          (f) A Participant shall not be entitled to receive any greater payment under Section
2.16 and Section 2.18 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.18
unless the Borrower is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.18(e) as though it were a
Lender.




          (g) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.




          Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process.




          (a) This Agreement and the other Loan Documents shall be construed in accordance with and be
governed by the law (without giving effect to the conflict of law principles thereof) of the State
of New York.




          (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the non-exclusive jurisdiction of the United States District Court of the Northern District of
New York and of any state court of the State of New York located in the city of New York, Borough
of Manhattan and any appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement or any other Loan Document or the transactions contemplated hereby or
thereby, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York state court or, to the extent permitted by applicable
law, such Federal court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or any other Loan
Document against the Borrower or its properties in the courts of any jurisdiction.




69









 








          (c) The Borrower irrevocably and unconditionally waives any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding described in paragraph
(b) of this Section 10.5 and brought in any court referred to in paragraph (b) of this
Section 10.5. Each of the parties hereto irrevocably waives, to the fullest extent
permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.




          (d) Each party to this Agreement irrevocably consents to the service of process in the manner
provided for notices in Section 10.1. Nothing in this Agreement or in any other Loan
Document will affect the right of any party hereto to serve process in any other manner permitted
by law.




          Section 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.




          Section 10.7. Right of Setoff. In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, each Lender and the Issuing
Bank shall have the right, at any time or from time to time upon the occurrence and during the
continuance of an Event of Default, without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by applicable law, to set off and apply
against all deposits (general or special, time or demand, provisional or final) of the Borrower at
any time held or other obligations at any time owing by such Lender and the Issuing Bank to or for
the credit or the account of the Borrower against any and all Obligations held by such Lender or
the Issuing Bank, as the case may be, irrespective of whether such Lender or the Issuing Bank shall
have made demand hereunder and although such Obligations may be unmatured. Each Lender and the
Issuing Bank agree promptly to notify the Administrative Agent and the Borrower after any such
set-off and any application made by such Lender and the Issuing Bank, as the case may be;
provided, that the failure to give such notice shall not affect the validity of such
set-off and application. Each Lender and the Issuing Bank agrees to apply all amounts collected
from any such set-off to the Obligations before applying such amounts to any other Indebtedness or
other obligations owed by the Borrower and any of its Subsidiaries to such Lender or Issuing Bank.




          Section 10.8. Counterparts; Integration. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts (including




70









 







by
telecopy), and all of said counterparts taken together shall be deemed to constitute one and the
same instrument. This Agreement, the Fee Letters, the other Loan Documents, and any separate
letter agreement(s) relating to any fees payable to the Administrative Agent constitute the entire
agreement among the parties hereto and thereto regarding the subject matters hereof and thereof and
supersede all prior agreements and understandings, oral or written, regarding such subject matters.




          Section 10.9. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any fee or any other amount payable under
this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Revolving
Commitments have not expired or terminated. The provisions of Sections 2.16,
2.17, 2.18, and 10.3 and Article IX shall survive and remain in
full force and effect regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of Credit and the Revolving
Commitments or the termination of this Agreement or any provision hereof. All representations and
warranties made herein, in the certificates, reports, notices, and other documents delivered
pursuant to this Agreement shall survive the execution and delivery of this Agreement and the other
Loan Documents, and the making of the Loans and the issuance of the Letters of Credit.




          Section 10.10. Severability. Any provision of this Agreement or any other Loan
Document held to be illegal, invalid or unenforceable in any jurisdiction, shall, as to such
jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability
without affecting the legality, validity or enforceability of the remaining provisions hereof or
thereof; and the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction.




          Section 10.11. Confidentiality. Each of the Administrative Agent, the Issuing Bank
and each Lender agrees to take normal and reasonable precautions to maintain the confidentiality of
any information provided or made available to it by or on behalf of the Borrower or any Subsidiary,
except that such information may be disclosed (i) on a need to know basis to any Related Party of
the Administrative Agent, the Issuing Bank or any such Lender, including without limitation
accountants, legal counsel and other advisors, (ii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iii) to the extent requested by any
regulatory agency or authority, (iv) to the extent that such information becomes publicly available
other than as a result of a breach of this Section 10.11, or which becomes available to the
Administrative Agent, the Issuing Bank, any Lender or any Related Party of any of the foregoing on
a non-confidential basis from a source other than the Borrower, (v) in connection with the exercise
of any remedy hereunder or any suit, action or proceeding relating to this Agreement or the
enforcement of rights hereunder, and (vi) subject to provisions substantially similar to this
Section 10.11, to any actual or prospective assignee or Participant, or




71









 







(vii) with the
consent of the Borrower. Any Person required to maintain the confidentiality of any information as
provided for in this Section 10.11 shall be considered to have complied with its obligation
to do so if such Person has exercised the same degree of care to maintain the confidentiality of
such information as such Person would accord its own confidential information.




          Section 10.12. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which may be treated as interest on such Loan under applicable law (collectively,
the “Charges”), shall exceed the maximum lawful rate of interest (the “Maximum
Rate”) which may be contracted for, charged, taken, received or reserved by a Lender holding
such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan
hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum
Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of
such Loan but were not payable as a result of the operation of this Section 10.12 shall be
cumulated and the interest




          and Charges payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Rate to the date of repayment, shall have been received by such
Lender.




          Section 10.13. Waiver of Effect of Corporate Seal. The Borrower represents and
warrants that it is not required to affix its corporate seal to this Agreement or any other Loan
Document pursuant to any requirement of law or regulation, agrees that this Agreement is delivered
by Borrower under seal and waives any shortening of the statute of limitations that may result from
not affixing the corporate seal to this Agreement or such other Loan Documents.




          Section 10.14. Patriot Act. The Administrative Agent and each Lender hereby notifies
the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Patriot Act. The Borrower shall, and
shall cause each of its Subsidiaries to, provide to the extent commercially reasonable, such
information and take such other actions as are reasonably requested by the Administrative Agent or
any Lender in order to assist the Administrative Agent and the Lenders in maintaining compliance
with the Patriot Act.




(remainder of page left intentionally blank)




72









 








          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed under
seal in the case of the Borrower by their respective authorized officers as of the day and year
first above written.




	 	 	 	 	 	 	 
	 	 	THE E.W. SCRIPPS COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	          /s/ E. John Wolfzorn
	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: E. John Wolfzorn	 	 
	 

	 	 	 	Title: Vice President and Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	[SEAL]	 	 
	 
	 	 	 	 	 	 
	 	 	SUNTRUST BANK	 	 
	 	 	as Administrative Agent, as Issuing Bank, as	 	 
	 	 	Swingline Lender and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	          /s/ E. Matthew Schaaf, IV	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: E. Matthew Schaaf, IV	 	 
	 

	 	 	 	Title: Vice President	 	 






 









 






	 	 	 	 	 	 	 
	 	 	FIFTH THIRD BANK, an Ohio Banking	 	 
	 	 	Corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	          /s/ Megan S. Heisel
	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Megan S. Heisel	 	 
	 

	 	 	 	Title: Vice President	 	 





Signature
Page to Revolving Credit Agreement

 









 






	 	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	          /s/ Susan Bader
	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Susan Bader	 	 
	 

	 	 	 	Title: Vice President	 	 





Signature Page to Revolving Credit Agreement


 









 





	 	 	 	 	 	 	 
	 	 	FIRST TENNESSEE BANK, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	          /s/ Tiffany E. Gardner
	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Tiffany E. Gardner	 	 
	 

	 	 	 	Title: Vice President	 	 











 









 











	 	 	 	 	 	 	 
	 	 	PNC BANK, NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	          /s/ Bruce A. Kintner
	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Bruce A. Kintner	 	 
	 

	 	 	 	Title: Vice President	 	 





102408068.2, EWS Credit Agreement (Conformed Signatures)